C2005/1910, Transcript of Proceedings [2005] AIRCTrans 901 (14 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11127-1

SENIOR DEPUTY PRESIDENT LLOYD

C2005/1910

NATIONAL UNION OF WORKERS
AND
QANTAS AIRWAYS LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/1910)

MELBOURNE

2.34PM, MONDAY, 04 APRIL 2005

Continued from 17/3/2005

PN185

THE SENIOR DEPUTY PRESIDENT: Are there any changes to appearances?

PN186

MR STYLES: There is an additional appearance today. MR D VICKERY appears on behalf of Qantas Airways Pty Ltd.

PN187

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Styles. Who would like to start?

PN188

MR RICHARDSON: I think that falls to me as the applicant, your Honour. Your Honour, since we were last before you the parties have met on two occasions. We met for an hour or so immediately after the last report back, and arising from that meeting there were a number of timelines or timeframes agreed upon for the exchange or supply of information, and that occurred, and also the union suggested that the employees that are central to this matter be advised of both those timeframes and the general approach that the parties have agreed to adopt by means of a joint communication, or at least a communication that was jointly drafted, and the union prepared a draft of that which was forwarded to the company. There were some minor amendments, and all employees subsequently received that communication.

PN189

The second occasion on which the parties met was last Friday, and that was why we originally asked your associate to amend the report back from Friday to today, and there are a large number of matters in the union's submission that remain unresolved. Some of those issues we say are of a threshold nature, in the sense that they are to be considered in the context of whether the company has the right to amend the shift rosters as proposed. And I would hasten to add that the rosters that were originally proposed and formed the basis of an exhibit by Mr Styles when we were last before you have been amended again, and were provided to employees and the union last Wednesday, the union last Wednesday, and the employees last Wednesday and Thursday.

PN190

So there are now another set, in fact, a third different set of rosters on the table, and we say there are a number of threshold issues as to the company's right to implement those rosters, and then notwithstanding whether that right exists or not there are a range, in fact, we say quite a substantial range of issues which at this point we would broadly describe as issues related to health and safety, where the union has asked a number of questions and sought the provision of a considerable amount of detail which has not yet been provided.

PN191

Your Honour, having said that, we would seek in the first instance to move into conference so that the parties can appraise you of those issues, or at least those threshold issues, and also discuss how this matter might progress. If the Commission pleases.

PN192

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Richardson.

PN193

MR STYLES: Thank you, your Honour. I have no fundamental disagreement with Mr Richardson in adjourning into conference. What I would suggest, and I think Mr Richardson touches on the point, there are a number of threshold issues between the parties, which you would be potentially aware of from the previous matter, and I think for the purposes and the effectiveness of the conference I think if we could potentially deal with those threshold matters first, because the other issues in our view, although important, are ancillary after those threshold issues are resolved. It may be necessary for us to come back on the transcript and put something to you about that because that may assist the Commission in how we deal with this matter going forward. If the Commission pleases.

PN194

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Styles. We will now adjourn into private conference.

<SHORT ADJOURNMENT [2.39PM]
<RESUMED [3.29PM]

PN195

THE SENIOR DEPUTY PRESIDENT: The conference has concluded, and now the hearing of the matters in dispute between the parties will resume.

PN196

MR RICHARDSON: Thank you, your Honour. Your Honour, I would seek to tender a document which was the subject of some discussion in conference, which sets out a range of issues on which the parties do not have agreement.

EXHIBIT #R3 ISSUES ON WHICH THERE IS NO AGREEMENT

PN197

MR RICHARDSON: Your Honour, if I could direct your attention to items 1 and 3 within the exhibit just tendered, which describe the two issues on which the parties have been unable to reach agreement. In essence those matters are the assertion on the part of the union that both rosters as proposed by the company require the agreement of a majority of the relevant employees, and that in the event that it is proposed that hours in excess of eight per day, that is eight ordinary hours per day, are to be worked then that also requires the agreement of the majority of relevant employees. Your Honour, I would also seek to tender a copy of a document which is entitled Second Employee Briefing, 29 March 2005.

EXHIBIT #R4 SECOND EMPLOYEE BRIEFING DATED 29/03/2005

PN198

MR RICHARDSON: Your Honour, since we were last before you, as I've already indicated, the parties agreed on certain timeframes, and they included the company making presentations, or further presentations to employees. The exhibit R4 is a copy of the presentation made to employees on 30 and 31 March, and specifically I direct your attention to page 5 and page 6, and those two pages are titled Shift Option 1, and Shift Option 2 respectively. These are the amended options that the company presented to employees last week.

PN199

The first, namely, Shift Option 1, requires that employees can't be engaged as day workers, work staggered starts with some commencing at 7 am and some commencing at 9.30 am, and that then there be a total of 24 employees engaged on two panels or two systems of eight hour shift on a rotating basis. The second option which appears at page 6 also requires that a number of day workers work at staggered start times, but that the number of shift workers be 26, 16 of whom would work a rotating nine and a half hour roster with each of the four crews consisting of four employees, and the remaining 10 would work a two week rotating roster with each crew consisting of five employees.

PN200

Under both option 1 and option 2 a number of existing employees who are engaged as day workers are required to effectively commence employment on shift. For the existing shift workers, all of whom work 12 hour shifts, the company has sought, along with the day workers, that the employees advise the company by close of business this Wednesday as to their preference, their current skills and attributes and any other relevant information so that it can endeavour to allocate employee preference to the rosters, and in particular the company has indicated to the employees, as is evidenced at page 15 of the exhibit, that it is the company's intention to roll out the option that is described at option 2.

PN201

So in essence the company proposes that the shift work within the distribution operation at Tullamarine will be characterised by nine and a half ordinary hours over seven days of the week, and the day work will be consistent of two staggered starts at 7 am and 9.30 respectively. The company intends to implement option 2 with effect from 21 April, unless the schedule of its internal customer, that is the heavy maintenance section of the business, is disrupted or delayed. So the intention is for the roster to be implemented within the next two to two and a half weeks.

PN202

Your Honour, in essence we say that the two relevant awards, namely, the Airline Operations Qantas Airways Limited and National Union of Workers Hours of Work Award 2000, and the Airline Operations Qantas Airways Limited Award 1999 do not afford the company the right to implement the second option, nor, for that matter, although given the company's intention, and it's not debated at this point, the first option, and in addition do not allow the company to implement a nine and a half hour shift in the absence of the agreement of a majority of the relevant employees.

PN203

Your Honour, if I could take you to clause 7 within the hours of work award first, and a copy of the, or at least parts of the award were provided on 28 February. Clause 7 provides at 7.1:

PN204

The ordinary hours of work shall be an average of 38 hours per week to be worked in one of the following ways.

PN205

I indicate that there are five alternative proposed or possible methods by which the ordinary hours could be worked. And then at clause 7.1.6 there is then the ability for an alternative, which is described as:

PN206

Any combination of the above or such other method as agreed by the parties.

PN207

Importantly, in our submission, though is clause 7.2, which reads:

PN208

The actual arrangement for working the average of 38 hours per week shall be in accordance with clause 25.1.2 of the Airline Operations Qantas Airways Limited Award 1999.

PN209

I then direct the Commission's attention to clause 25.1.2 of the Airline Operations Award, or the parent award as it is sometimes referred to by the parties:

PN210

Subject to the company's right to fix the daily hours of work for any day worker or shift workers from time to time within the spread of hours in 25.2.1, and the company's right to fix the commencing and finishing times of shifts from time to time, the arrangement of ordinary working hours is to be by agreement between the company and the majority of employees in the workplace or part of the workplace concerned. This does not preclude the company reaching agreement with individual employees about how their working hours are to be arranged.

PN211

Your Honour, the hours of work award within clause 5, and specifically at 5.2, provides that:

PN212

The hours of work award is to be read in conjunction with the parent award provided that to the extent of any express inconsistency the terms of the hours of work award shall prevail.

PN213

In our submission, whilst clause 7.1 of the hours award sets out the options as to how the average of 38 hours is to be worked, the adoption of one of those options or, as is contemplated at clause 7.1.6, a combination or alternative of those options is governed by clause 7.2, which specifically requires reference to clause 25.1.2, which provides in turn:

PN214

The arrangement of ordinary working hours is to be by agreement between the company and the majority of employees concerned.

PN215

In our submission those provisions, when read properly, contain no ambiguity and should be afforded their ordinary meaning. If one refers to the option presented within exhibit R4, and if one accepts as a matter of fact that presently the shift workers do not work the option that appears at option 2, in our submission any such shift pattern consisting of nine and a half hours requires their agreement or at least the agreement of the majority.

PN216

The union acknowledges that clause 25.1.2 provides for individual facilitation, however, we say that there is no issue that - well, I'll withdraw that. At this point there is no suggestion that the company has sought to reach any agreement, or particularly any agreement with individuals. But we say that the provisions of the clause are clear, agreement is required. We go further though and say that in respect of option two, which is characterised by shift workers as consisting of nine and a half ordinary hours, that clause 25.1.2(b) of the parent award also identifies as one of the areas upon which agreement may be reached, at the second bullet point:

PN217

Any arrangement of ordinary hours which exceeds or is less than eight hours per day.

PN218

So we say that, again, on its ordinary interpretation, if hours are to exceed eight on any day it must be by agreement. Now, that is a secondary argument, because we acknowledge that clause 7.1 within the hours award provides a range of options but, again, which option is adopted is to be agreed. Now, again, the current custom, the current practice is that 19 employees are engaged as day workers, and the balance of the employees are engaged as shift workers - I'm sorry, I stand corrected, 21 employees are engaged as day workers and the balance are engaged as shift workers.

PN219

All of the shift workers currently work a 12 hour shift, a 12 hour shift roster by agreement between the parties, and have done so since the early 1990s. There is no nine and a half hour shift in place at the moment. People are either engaged as shift workers working 12 hours or as day workers working their hours within the ordinary spread. And they are the only two options available to the company. In anticipation and having regard to the time available to the parties and the Commission, the union understands that the company seeks to place, or will seek to place considerable weight upon two clauses that exist elsewhere within the parent award. Those clauses are clause 25, which is titled Transfer Between Systems of Work, and which reads:

PN220

In order to meet the needs of the industry an employee may be required to work as a day worker or as a one, two or three shift worker, whether on continuous work or not, at the applicable rates. An employee may be required to transfer from one of those systems of work to another. If an employee is required to transfer between systems of work the company must give the employee at least one week's notice of the change.

PN221

And in our submission a similar provision appears at clause 10 of the award, and entitled the Flexibility of Day Work and Shift Work, where the clause provides:

PN222

For the purpose of meeting the needs of the industry the company may require any employee to transfer from day work to shift work to work in accordance with clause 25.5, or require an employee to transfer from shift work to day work.

PN223

Now, we say that those provisions, when one has regard to clause 7.2 of the hours award, and clause 25.1.2, talk about two things. Firstly, and most importantly, they talk about the ability of the employer to transfer employees between systems of work, and we say that that means between agreed arrangements of ordinary working hours. So there may be a suite of options available, but the company's right to implement any such transfer is contingent upon the arrangement of ordinary working hours being agreed with the majority of the employees.

PN224

We also say that the clause serves a secondary purpose, which is not in dispute in these proceedings, which is that it puts beyond doubt, or at least we would concede that it puts beyond argument that in the event that a day worker is transferred to shift, that they cannot argue or rely upon that as a reason for redundancy. But in other proceedings, if somebody is engaged as a day worker and is compelled to work shift against their consent, that can, depending on the facts, trigger an argument for redundancy. Clauses 10 and 25.7, in our submission, put that beyond doubt. But we offer that simply as a secondary explanation.

PN225

The simple facts remain though, that the awards would require agreement between the company and the majority of employees, not only in respect of how the ordinary hours are arranged, but also in respect of nine and a half hours.

PN226

THE SENIOR DEPUTY PRESIDENT: Just to clarify. On 25.5, the second line refers to a day worker as a one, two or three shift worker. Can you explain to me what's meant by a one, two or three shift worker?

PN227

MR RICHARDSON: Your Honour, perhaps if I commence that definition with the three shift worker. That would mean an employee working what would normally be known, although Mr Styles may rise to correct me if he wants, a three by five by eight, or a three by seven by eight. In other words, there would be three shifts following each other, day, afternoon and night in their traditional shift sense. By way of a practical example of a two shift worker, that might be somebody who works a day shift followed by an afternoon shift, or an afternoon shift followed by a night shift, and a one shift worker would be somebody solely working one of those three.

PN228

Now, to the extent that I've endeavoured to answer your question, that is in my mind and in my submission predicated on the concept of eight hours, but a three shift worker would - and I suggest it would be unchallenged - normally be seen as somebody who either works day followed by afternoon by night, or might work day all the time, but there is then a following shift of employees who would perform the same work on an afternoon and on night.

PN229

Your Honour, there are many principles governing interpretation of awards. I would seek to briefly take the Commission to four, and provide to you authorities in respect of each of those, and I've, for the sake of, again, convenience, bundled those together in one document.

EXHIBIT #R5 AUTHORITIES

PN230

MR RICHARDSON: Your Honour, if I could direct your attention firstly to the decision of a Full Bench of the Industrial Relations Court in respect of the Clothing Trades Award. The reference there is [1950] CthArbRp 524; 68 CAR 597, and in that matter a Full Bench considered the definition of certain words within the Clothing Trades Award of 1950. It is a brief decision but it is a decision often relied upon in matters of interpretation of industrial instruments and stands for the long held authority that award provisions that are clear and unambiguous should be interpreted accordingly. In particular, I quote from the end of the first page of the decision, where the Bench indicated:

PN231

The Court wants to make it clear that it regards and has always regarded the matter before it as one clearly of interpretation, a power which is conferred on the Court by section 29D of the Act, and in these proceedings it proceeds as any other court of law does when it is called upon to interpret a written document. It needs to ascertain what the words are, what they mean in their ordinary natural significance, and if they find ambiguity would be guided by the well known rules of law which are called in aid to those circumstances, but if they find no ambiguity then there is no need to call in those rules which assist the court in circumstances where ambiguity is present.

PN232

Now, it is arguable that there is tension between the clauses and between the two awards, but we say there is no ambiguity that clause 7.2 of the hours award is clear. It says that the actual arrangement of hours shall be in accordance with 25.1.2, and then 25.1.2 specifically talks about agreement as to the arrangement of ordinary working hours. The union acknowledges that clause 25.1.2 talks about where the company has rights, and those rights are the fixed daily hours for any day worker or shift worker within the spread of hours, and the right of the company to fix the commencing and finishing times of shifts.

PN233

So there is no dispute that where the company has rights they are the right to say, as they have as a matter of fact, in option 2 to the day workers, we require some of you to commence work at 7 am and some of you to commence work at 9.30 am. But that right does not extend to actually determining the arrangement of the ordinary hours. That requires agreement. And, in fact, in reference to the company's right to fix the daily hours, we say that that is confined or curtailed by being within the spread of hours within clause 25.2.1.

PN234

In clause 25.2.1, albeit type of day work talks about the spread of hours being between 7 and 6, and that the ordinary hours may be worked continuously between 7 am and 6 pm on any or all of the days of the week, Monday to Friday. So there is a secondary argument open to the union that any ability for hours to be worked outside of Monday to Friday require some measure of agreement. There is no other provision within the award, and the union accepts that. In interpreting the instruments one must look at the instrument as a whole. There is no other reference to what the spread of hours might be or would be in the alternative to shift workers other than that appears by reference at 25.1.2 and 25.2.1.

PN235

There is a definition contained within clause 4 of the award of a shift worker, of a seven day shift worker, but the union is unable to find any other clause or provision that supports or fortifies that. So the rights of the company are to commence the starting and finishing times, and the daily hours within the spread, but those rights do not extend in the absence of agreement to option 2. The second decision that I would take the Commission briefly to stands for the proposition or the authority that not only should the ordinary meaning of the words in question apply, but that should be the case even if the result is unjust or inconvenient. And that authority is cited with approval in the matter of John L Pearce Pty Ltd v Kennedy - I beg your pardon, your Honour, I've got my authorities in the wrong order.

PN236

If I could take you to the last of the authorities of the three, and I do aplogise for that, and I apologise to Mr Styles. The proposition that the ordinary meaning of the word should apply even if that results in an unjust or inconvenient circumstance, was considered by the Court in the matter of John L Pearce Pty Ltd v Kennedy, which is referred to in a copy of the Australian Industrial Law Review that I've provided, volume 50 at 4/477, but in particular at the second last page of that decision the Court in that matter cited with approval an earlier decision of Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Company Limited. The reference there is [1920] HCA 54; 28 CLR 129 at 162:

PN237

The question is, what does the language mean? And when we find what the language means in its ordinary and natural sense it is our duty to obey that meaning, even if we think the results would be inconvenient or impolitic or improbable.

PN238

In our submission we say that in the matter of John L Pearce, the Court held the same reasoning. And so even though we say that it could be argued that if the employer is required to reach agreement with a majority of employees on what the arrangement of ordinary working hours, and if that may frustrate or not achieve the objectives of the business, that is not a relevant consideration in considering the ordinary meaning of the words. So that is the second authority that we rely upon.

PN239

The third authority is the one that appears in the middle, which is Hawker de Havilland Aircraft Pty Ltd v Thomas W Floyd, and the reference there is [1948] CthArbRp 575; 61 CAR 735. I seek on this occasion not to quote from the decision, only to refer to the fact that the relevant summary in our submission appears at page 738 and 739, and that that decision stands for the proposition that where a tribunal is asked to interpret a matter and is to have regard to words, then again on the face of it, prima facie, is what it's referred to within that decision, words should be provided with their prima facie meaning. And we say that each of those propositions supports the interpretation of the awards and the clauses that the union has referred you to.

PN240

However, the union acknowledges that in addition to authority as to how one should approach interpretation, regard may be had or it can be had to extrinsic material, in our submission there are somewhat differing views of that tribunal that would normally interpret awards, namely the Federal Court, as to how extrinsic material is to be treated. In particular there are views that extrinsic material should only be had regard to where some ambiguity exists, and then there was a decision of his Honour, Marshall J of 2001, where there was a view held that whether or not there was ambiguity extrinsic material may be had regard to.

PN241

In any event we say that if the Commission is persuaded, or if the Commission feels that there is some necessity to explore extrinsic material, there is further extrinsic material, including the proceedings, leading to the creation of the parent award which supports the propositions that the union is advancing. In that respect I seek to tender a copy of the clauses that govern the hours of work of day workers and shift workers under the antecedent award to the current parent award. I'm not sure if the Commission wishes to have those marked or not.

PN242

THE SENIOR DEPUTY PRESIDENT: We won't mark those, I don't think.

PN243

MR RICHARDSON: Further, I see, to provide a copy of a Full Bench decision in respect of an appeal filed by Qantas in this award, in the parent award.

EXHIBIT #R6 FULL BENCH DECISION

PN244

MR RICHARDSON: Your Honour, perhaps if I could take you to R6 first, which is a decision of the Full Bench of 21 August 1999, comprising Senior Deputy President MacBean, then Deputy President Duncan and Commission Redmond, print R8240, and this is an appeal by Qantas against the making of the award that is before you in these proceedings. Again, the award is colloquially referred to as the parent award. And Qantas filed an appeal against the making of that order or that award by Commissioner Wilkes in April of 1999.

PN245

Specifically their appeal went to two points. In reverse order it went to the issue of whether the Commission had erred in respect of a laundry or uniform entitlement and, secondly, and more importantly, or importantly in respect of these proceedings, it went to the question of hours of work, and in particular the fact that Commissioner Wilkes within the original award that he made, contained within clause 25.1.1, the following words:

PN246

The ordinary hours of work shall be an average of 38 hours per week to be worked on the basis of 152 ordinary hours within a work cycle not exceeding 28 consecutive days, to be worked at eight hours per day over 19 days per cycle.

PN247

And Qantas chose to appeal that part of the hours of work provision in the award before you. In doing so they submitted that Commissioner Wilkes had exceeded the test case standards in respect of ordinary hours and exceeded the requirements of section 89A. The award in its current form, or at least in the form that now exists in light of this appeal, arises as a consequence of the award simplification process and, in particular, item 51 of the WROLA Act.

PN248

Importantly, in our submission, the Full Bench considered the question of hours and, in particular, made a number of observations from page 12 onwards in that decision. And we say it is worth not only directing your attention to that, but quoting from it, from paragraph 41. At paragraph 41 the Bench says:

PN249

We consider that by including the 19 day month the Commission fell into error. The Commissioner was required by the Act and the award simplification principles to provide a minimum safety net for ordinary hours of work being 38 hours per week. The method of working of such ordinary hours of work to meet the efficient performance of work according to the needs of the workplace or enterprise is a matter that should be left to the agreement making between the employer and its employees.

PN250

I also make this point. The award before Commissioner Wilkes provided for a 40 hour week, not a 38 hour week, and each of the classes of employee that was subject to that award, and the unions with representative rights in respect of each of those class of employees had either an award or an agreement in respect of the actual 38 hour week. And the Bench went on at paragraph 48 and 47, by saying:

PN251

During the appeal there was some exchange between the Bench and Ms McKenzie for Qantas regarding the effect of a successful appeal on the operation of those Qantas awards containing 19 day rosters for the working of ordinary hours. We make the observation that the content and operation of those awards had not been determined as a result of this decision. The awards concerned were in time the subject of separate proceedings and dealt with on their own facts and circumstances.

PN252

Now, one such award is the hours of work award that is before you. But we say that the important point is that the Bench itself notes at paragraph 42 that whilst Commissioner Wilkes exceeded his authority by effectively and, for want of a better term, prescribing a 19 day month, that the actual method of the working or the arrangement or ordinary working hours was to be left to the agreement making process between the employer and the employees. And we say that it is reasonable to conclude, given that this is extrinsic evidence, that that is a reference to and is incorporated within clause 25.1.2 of the parent award.

PN253

Finally though we direct your attention to the antecedent provisions of that award that existed prior to Commissioner Wilkes making the current award, and that award was known as the Aircraft Industry Qantas Airways Limited Award 1980. In respect of day workers under clause 17, whilst it talks about a 40 hour week, it talks about day workers working, subject to certain exceptions, their ordinary hours on five days of eight hours each - that is at clause 17(a) of the documents provided - provided that the spread of hours or daily hours prescribed may be altered by mutual agreement between the company and its employees.

PN254

And then in respect of shift workers, which is clause 23 of the antecedent award, under the title of Hours of Duty, which is clause 23(b) that appears on the second page, again keeping in mind that the award provided for a 40 hour week, the award said that:

PN255

In respect of shift workers the ordinary hours of shift workers shall not exceed eight hours in any shift or 80 hours in two roster weeks.

PN256

With respect we say 80 hours in a two week period or a 14 day period. However, further support in our view can be found for the proposition, if one turns to clause 23(b)(iii) which is on the next page, where, when talking about the entitlements of shift workers to rest or meal breaks, it talks about:

PN257

A shift shall consist of not more than eight hours inclusive of meal time.

PN258

In short, your Honour, we say that the provisions in the pre-existing parent award clearly talk about eight hours per day, and any arrangement in excess of eight requiring agreement. And they are the provisions that were before Commissioner Wilkes, and they are the provisions that are now reflected in clause 25.1.2, to the extent that those matters remain allowable, and there is no deviation, there was no suggestion that anything in excess of eight hours can simply be by company determination. It can only be by agreement.

PN259

In concluding, your Honour, we make one final point, and that is that the employees central to this matter are engaged as 12 hour shift workers. They work 12 hour shifts by agreement, an agreement that has existed between the parties since at least 1990, and that is indicative of the custom and practice, that the patterns of work, the arrangement of hours are by agreement. The union doesn't dispute the right of the employer to transfer employees from one shift to another or from day work to shift work, but only to those shift work arrangements or day work arrangements where the hours are agreed.

PN260

In our submission, based on what has been said to us in the various conferences and in discussions between the parties, the company seeks to ignore clause 7.2 in the hours award, and seeks to ignore that part of clause 25.1.2 that talks about agreement. And we say that an approach of ignoring a clause is inconsistent with the approach that should be adopted when interpreting a matter, that one should not interpret a provision or ignore a provision so that it's designed to negate or make nugatory a provision that is central to the matters in dispute.

PN261

Your Honour, in concluding, I thank you for your time today, and ask for a speedy decision in this matter, given that whilst the rights of the parties are important, also there are some 39 or so employees who are mindful of these proceedings. If the Commission pleases.

PN262

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Richardson. Mr Styles?

PN263

MR STYLES: If the Commission pleases, I would appreciate a brief adjournment till 4.30, to just prepare a reply to some of these submissions, and then I will conclude.

PN264

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN265

MR STYLES: I suspect my submissions at the most would take an hour, if the Commission bear an indulgence.

PN266

THE SENIOR DEPUTY PRESIDENT: Okay, the Commission will adjourn until 4.30.

<SHORT ADJOURNMENT [4.11PM]
<RESUMED [4.29PM]

PN267

THE SENIOR DEPUTY PRESIDENT: Mr Styles?

PN268

MR STYLES: Thank you, your Honour. The outline of my argument today will be - the process I'd like to do is put in the view, the company's submissions, the correct interpretation of the awards before you, and put a submission to you why we have this view, and then at the end I would like to address some of the submissions made by Mr Richardson, if the Commission pleases. In particular can I take you to exhibit R4 to, in a sense, take you to the pages that Mr Richardson referred you to at pages 5 and 6, to say, in terms of option 1 and the area of dispute that we say is between the parties is around (ii) and (iii), we say these are the eight hour rosters in relation to those matters. We go over the page to page 6 and we refer to the dispute around (ii) and (iii).

PN269

Now, the company wants to indicate to the Commission, if you go over the page at page 7, which we think should be taken into account, is that if you look at option 1, for the current shift workers in the top line in (ii), they would actually gain a slight amount of money. For a day worker transferring to a shift work position there's a significant increase, but there's a significant change in their work patterns. In option 1(iii) you will see that there is a significant decrease in income for the current shift workers on those proposals. Again there is the current day workers would gain.

PN270

If you go over the page again to page 8, you will see on the model which is the preferred model of the company that in option 2(ii) the current shift workers lose only a small amount varying between $8.06 and $7.33, and in option (ii) they lose between $7.23 and $6.57. In our view, in either of those options they have in a sense less days off, however, in option 2, which we've referred to as the nine and a half hour shift roster, they gain more days off, there is a balance in our view and there is in most cases less loss of income. And I think that that's an important point for when the Commission is considering this matter, the effect on the particular employees of these changes.

PN271

Now, I take you to why the company in its view relies upon the various provisions in terms of clause - and Mr Richardson has taken you partly to them - and I refer particularly to clause 25.5, and it is headed Transfer Between Systems of Work. I will preface my comments by saying I am dealing specifically with the existing 12 hour shift workers in this case. And I take you again to the words in that clause. It says:

PN272

In order to meet the needs of the industry, and we would put you there as a need here in particular in relation to this relationship, an employee may be required to work as a day worker or as a one, two or three shift worker (whether on continuous work or not) at the applicable rates of pay.

PN273

Now, we say that that contemplates our ability to transfer 12 hour shift workers which, in our view, are two shift continuous workers, to a different arrangement, because it is clearly said in there that in order to meet the industry demands the employee may be required to work as a day worker or as a one or two shift or three shift worker, whether continuous or not. It says further that:

PN274

The employee may be transferred to and from one of the systems of work to another.

PN275

Giving us a right there. And it says:

PN276

If the employee is required to transfer between the systems of work the company must give at least one week's notice of the change.

PN277

Now, we say clearly there that the requirement of the company to move 12 hour shift workers to another system of work is clearly specified in the award, it is clear and distinct. It says "and it requires us to give a week's notice." We say the clause is clear on that point, and the Commission should take that into account. There is no, as Mr Richardson has referred to, there is no other underlying words there in relation to it, and I will come to its interaction with 25.1.

PN278

THE SENIOR DEPUTY PRESIDENT: Systems of work is a term which is one which is not quite commonly used.

PN279

MR STYLES: No, and I would say that. But I think what it's tried to contemplate is all the various - and in fairness, Mr Richardson gave you some machinations of shift work, but there are a whole series of machinations of shift work. And we would say that that clause clearly contemplates 12 hour shift work, that is, that is a system of work that operates two shifts which are continuous, which by their nature that is what our present 12 hour, seven day a week shift workers work, and so therefore we say that their work is contemplated by this clause.

PN280

THE SENIOR DEPUTY PRESIDENT: So a system of work is a day worker, or a one, two or a three shift worker, is that what you're talking about?

PN281

MR STYLES: Yes, and whether they're continuous or not, that they are all linked together. So we say this is a broad clause contemplating the ability to move people from one system of work to another to meet the needs of the industry. And we say that the final clause is really an important point for the Commission to consider. It doesn't require agreement in any form to move from one system of work to another. Ultimately it requires notice.

PN282

Now, I then wish to take you to - and I understand you have it in front of you - the NUW - and if I can refer to it colloquially to as the Airline Operations Qantas Airways Limited NUW Hours of Work Award 2000. Now, Mr Richardson took you to these provisions, and I wish to take you to these provisions, and in particular I want to take you first to clause 7, and in particular 7.1. I want to emphasise to you that the words, ordinary hours of work, shall be in an average of 38 hours per week to be worked in one of the following ways, as you see in our option 2, one of the following ways is contemplated in 7.1.3.

PN283

We say that the word shall is a mandatory word, it does not require agreement. And further we say that this clause clearly considers that to be the right approach, because it says down in 7.1.6:

PN284

Any combination of the above -

PN285

And then it says:

PN286

- or such other methods as agreed between the parties.

PN287

So it then contemplated there could be agreements outside those arrangements above, but because the word shall is put at the top there, no agreement is required between the parties. Now, Mr Richardson relies upon clause 7.2 in a sense as balancing that. What I also say to you and, again, he relies upon the similar clauses of express inconsistencies in clause 5.2.

PN288

THE SENIOR DEPUTY PRESIDENT: Just before you move off 7; 7.1.6, I think Mr Richardson said that he read it as being if you had any combination of the above, or either method, you had to have an agreement, is the way I understood his submission.

PN289

MR STYLES: Yes, and that's the way. What we say is that in terms of looking and reading this clause you go to the word shall. Shall is the mandatory word in the clause in 7.1, and it says that we are able to organise our work in the following manners outlined in 7.1.1 through to 7.1.6, and it says we can actually organise our work in any combination of the above. Outside of those combinations we do need agreement. Now, I want to take you to - - -

PN290

THE SENIOR DEPUTY PRESIDENT: Sorry, it would have been more helpful for your case if it had have been 7.1.7, and that said, or such other method.

PN291

MR STYLES: I think yes, it would say, but I would put to you the word is or between it. Yes, you're right, it would be better to say it was a 7.1, a different subclause. But I would put to you that the word or contemplates where the agreement is, and that has to be balanced with the word shall, and shall is a mandatory word. I would then sort of turn to the issue that has been put to you in terms of clause 25, if I can take you to clause 25.1.2, but more importantly I would like to take you to particularly the provisions of 25.1.2(b) and, in particular, matters upon which agreement may be reached include.

PN292

And could I just take you for the purposes of this matter before you. We accept that how the average, the first bullet point, how the average payments are made to people, is a matter that requires agreement of the parties. What we say is, if you then look at bullet point 2:

PN293

Any arrangement of ordinary hours which exceeds or is less than eight hours requires agreement.

PN294

Now, what we say the Commission, in relation to our option 2, is there is a direct inconsistency between the two positions. We rely upon clause 5.2 of the National Union of Workers hours agreement, which says:

PN295

Where there's an express inconsistency the terms of this award shall prevail.

PN296

That is, for want of a better term, the NUW award, and therefore we then are able to rely upon clause 7.1 and its subsets to say that in our view we don't require agreement to implement the 9.5 hour shifts, because it is mandatory within there. I want to come back to that clause and talk a little bit more about it in terms of the interpretation that Mr Richardson has put on it. But we rely upon those provisions to say either the eight hour option that we've proposed can be contemplated, but the NUW agreement actually gives us further extensions and, we say in this case, better balanced extensions, that we're able to meet the needs of our business but also balance the needs of our employees by giving them nine and a half hour shifts.

PN297

We accept, without the NUW award, we would have to seek agreement to exceed the hours in excess of eight hours because that is clearly contemplated by that particular clause. But we say, and we emphasise again, that there is a direct and express inconsistency between the two points. Now, we then say in relation
to - - -

PN298

THE SENIOR DEPUTY PRESIDENT: Just before you go on, you mentioned the eight hour arrangement.

PN299

MR STYLES: That's right.

PN300

THE SENIOR DEPUTY PRESIDENT: Is that the option 1 you referred to?

PN301

MR STYLES: That's right, yes.

PN302

THE SENIOR DEPUTY PRESIDENT: And you were saying that you believe that you can do that?

PN303

MR STYLES: Well, we believe we can do that within the terms of the, to use Mr Richardson's terms, the parent award, the Airline Operations Award, but we say we can do the 9.5, our submission, because there's a direct inconsistency with that award and, for want of a better term, the NUW hours award. So that gives us the flexibility to do both. We say our preferred option is the 9.5 hour. We draw the Commission's attention to the matters I referred to in R4, that we think it's better for the employees, we think it's better for the business.

PN304

In my closing submissions I will come back to it if the Commission view on that. But we say the Commission should take the more expansive view, and that there is a direct inconsistency between the two provisions. We also say, and we take you again, as we did in terms of the transfer of hours, we also say work in conjunction with that is, how does the provisions in clause 25.4.6 which are headed Shift Rosters, and if I take the Commission, in 25.4.6(a) it says:

PN305

Shift rosters -

PN306

And this is again in the parent award:

PN307

- must specify the start and finish times of shifts. Employees must be given at least seven days notice of any change to their shift rosters.

PN308

Now, our view is, if you combine that clause with the clause dealing with the changes to systems of work, if we want to move people from a 12 hour shift to an eight hour shift or a nine and a half hour shift, we can then say that if we can't achieve agreement we give people a week's notice. That's the intention of that. There are very specific provisions dealing with changes to the system of work and changes to shift rosters to overcome the difficulty if you cannot achieve agreement between people.

PN309

We think that is a fundamental difference between the parties, we think that that is the preferred view of these clauses, and that is why those notice provisions are put there. They are clear and specific about how shift worker rosters can be changed. And we believe linked to that in terms of the award, and we draw your attention, as Mr Richardson drew your attention to, the flexibility, clause 10 in the parent award, day work and shift work. And, again, clearly here, for the purposes of meeting the needs of the industry the company may require an employee to transfer from day work to shift work to work in accordance with 25.5 for a period of not less, or require an employee to transfer from shift work to day work. And then it says in 10(ii):

PN310

In the absence of mutual agreement the company must give seven days notice of any transfer of day work to shift work.

PN311

Now, we say for the eight people that are contemplated to be moved from day work to the shift work arrangements, whether it's the eight or the nine and a half hours, but our preferred option is the nine and a half hours, again we are required, if we are not able to reach, again, in the absence of mutual agreement, the notice period to overcome the problem of not reaching agreement. And we say clause 10, clause 25.6(a) and clause 25.5 should be read in that context against where Mr Richardson relies upon, which is clause 25.1.2(a), where he emphasises and relies upon the words:

PN312

And the arrangement of the ordinary hours is to be by agreement between the company and the majority of employees in the workplace or the workplace concerned.

PN313

And what we say to the Commission is yes, if you take that construction is correct, if agreement can't be reached, what is the resolution? And the resolution we say is contemplated by the award for shift workers in this case by the giving of notice, and it's contemplated for day workers moving from day to shift work by giving notice. And that's how the award would overcome any frustrations that in a sense might be caused by the business in the needs of this industry.

PN314

THE SENIOR DEPUTY PRESIDENT: Just on that. I hope I'm not interrupting you, but you did raise with me clause 10. What is the impact of those words in the bracket in 10.1.1, for a period of not less than five shifts?

PN315

MR STYLES: Well, what we would say is, clause 10.2, in the absence of mutual agreement the company must give seven days notice of transfer from day work to shift work, we say that that's the provision that prevails in this case.

PN316

THE SENIOR DEPUTY PRESIDENT: So that doesn't mean that you can only exercise 10.1.1 for a period of not less than five shifts?

PN317

MR STYLES: We would say it wouldn't say that. We would say that clearly 10.2 contemplates that the company must give seven days notice of any transfer of work from day work to shift work.

PN318

THE SENIOR DEPUTY PRESIDENT: So can you clarify why the words in those brackets are included?

PN319

MR STYLES: We would say that those words there, and on looking on its surface, might contemplate that notice might not have to be given for shifts less than five. But what we say is, that's not the case here. These people are moving permanently, and we would say that clause 10.2 prevails, because it's clear, it says:

PN320

In the absence of mutual agreement the company must give seven days notice of the transfer -

PN321

And that's what would happen:

PN322

- from day work to shift work.

PN323

What I think clause 10.1.1 contemplates is working something less than five shifts. But that's not a matter that's here. This would be, in our case, subject to the success of the trials, this would be a permanent move for these people. Now, we come to the situation where Mr Richardson has clearly relied upon the provisions of clause 25.1.2(a). Now, we believe, as we've said earlier in the submissions, that this has to be read in the context of the provisions that I have put to you around shift work, transfer from day work to shift work, and transfer from one form of shift work to another.

PN324

We believe that this is how the matter is resolved in terms of agreement can't be reached, but also too I draw your attention to the words, and I think they are written specifically there, and the company's right to fix the commencing and finishing times of shifts from time to time. There is, in our view, a right of the company to fix the shift times that it needs by giving appropriate notice to the shift workers that are involved in this matter.

PN325

Now, we say at best the areas of construction for agreement are really contemplated by clause 25.1.2(b), that that is the area that that clause contemplates agreement around and should be read in conjunction with that. In our view they are the arrangements that agreements can come on to, subject to, as we said earlier, the express inconsistency that we says exists in the NUW agreement to, in a sense, strike out the second bullet point.

PN326

Now, we also say that those provisions can be overridden in relation to those matters by specific provisions further in the agreement that deal specifically with shift workers. So we go back to that fundamental issue that says if agreement can't be reached, then in certain circumstances clearly it's contemplated by the award that notice can be given to move people. And we will come to the Full Bench decision, but we would put to you the award clearly contemplates it's dealing with a seven day, 24 hour industry, it's dealing with the ability to move people, to change their shifts on a rapid basis, it contemplates if agreement can't be reached, what is the adequate solution.

PN327

Because to take Mr Richardson's submission to the extreme, people could constantly say, well, I'm not prepared to move my shift. We would be here continuously arguing matters before the Commission. And what we would say is that the award does contemplate how to resolve that, and it resolves it by notice. And we say that the award clearly says that adequate notice in most cases refers to one week's notice or it refers to seven calendar days notice. We think that is the proper construction put in relation to the clauses that Mr Richardson relies upon and, as we said in our submissions, we do accept that we have to reach agreement on the averaging of the payment of the hours over the work cycle. So we contemplate that we have to reach agreement in that area.

PN328

What we say is we don't have to reach agreement on is the ability to move people and also to fix their start and finish times, because that's clearly contemplated in the first sentences in clause 25.2.1(a). In terms of the exhibits that Mr Richardson put up to you, and I want to deal with them hopefully in a form that assists the Commission, we have no disagreements with the provisions in R5, they are standard matters before the Commission. We rely upon the submissions here that there are clear and specific provisions dealing with the movement of shift workers.

PN329

What is contemplated at best, you could say, in clause 25.1.2(a) is some generalisms about what agreement is required on. We say that agreement is limited by the provisions of clause 25.1.2(b), but further, the agreement is not required, as we've referred to earlier, the movement of our shift workers. Where there is disagreement it can be resolved by notice. So we say the Commission should be guided in interpreting it, what the specific provisions are rather than a general provision.

PN330

Now, Mr Richardson relied upon the previous awards to assist the Commission in doing that. We say that the Commission should dismiss those because the award before you has superseded those provisions, and clearly that is contemplated by the clause 5, I think, of the award. I beg your pardon, clause 7 of the award. It says:

PN331

This award supersedes the Aircraft Industry Airlines Award Limited 1980, but no rights or obligations or liability incurred under the award are affected by this award.

PN332

Now, we say that the award has clearly changed, there are different provisions, and the Commission should not rely upon any submissions in relation to that. There are clearly different provisions around shift workers that I've taken you to in relation to the existing award, they are different from the provisions in the previous award, and we say that the Commission should not consider those. We say in relation to the Full Bench decision, which is marked as exhibit R6, and Mr Richardson took you specifically to paragraph 42, what we say to you in relation to that, the Full Bench was not dealing with the provision that was in front of you, that it was dealing with 25.1.1 on that matter only. It made a variation to that. It made no remarks about 25.1.2.

PN333

The appeal was specifically on two points, one point being irrelevant and, in our view, the other point was irrelevant because it was dealing with the question of whether the 19 day month was contemplated as part of the safety net, or whether the hours of work should be, as it is in the award, 25.1.1. But the Full Bench was not dealing with those provisions, and any remarks that it made outside of those provisions should be kept at that, that they were remarks by the Full Bench, they were not dealing with the specific point.

PN334

Now, in summary we would say the following. In summary, we say there are clear provisions dealing with these matters in the award. There is in a sense no ambiguity. There is clear certainly about the movement of shift workers where agreement can't be achieved, and there is clear provisions in dealing with day workers where agreement can't be achieved about moving them onto shift work. We say that there is a direct express inconsistency between the parent award and what I might refer to as the NUW hours award, on our ability to actually create shifts without agreement in excess of eight hours, and we've drawn you to that point.

PN335

We say that the clause that Mr Richardson relies upon in clause 25.1.2(a) concerning the arrangement of the ordinary hours of work, is to be by agreement to the company and the majority of employees in the workplace or part of the workplace concerned, should be read in the context of also clause 25.1.2(b), about where agreement can be reached. Now, we say in our primary submission to you that what we propose in our option 2 can be contemplated, when looking at both the awards together, that the notice period required is one week, and we rely upon also, when the Commission is considering these matters, that the ability of the company to manage its business in the most efficient manner possible, without being harsh, unreasonable or unfair to our employees, we say in considering that the preferred option is, as indicated by the company, should be the 9.5 hour option.

PN336

As a secondary submission, if the view of the Commission is that there is not an express inconsistency between the two awards, then the only view the Commission can take is therefore option 1, and the eight hour shift provision should prevail, because there are clear provisions, as we say in our primary submissions, about moving shift workers from one system of work to another. Now, we say that's not the preferred interpretation because, in actual fact, that would mean more loss of income for our employees, in our view, and more loss of leisure time.

PN337

If the Commission was inclined to disagree with us on that matter, then therefore there is only one other option open, it's the eight hour option. And we lean towards clause 25.1.2(b), which says:

PN338

Arrangements of ordinary hours which exceeds or is less than eight hours requires agreement.

PN339

We say in our final submissions, if the Commission in some ways considers there is some merit to the union argument in terms of where agreement has to occur with the majority of employees, what we say is this. And it is not our primary submission, because we take the Commission to the words, the company's right, in clause 25.1.2(a):

PN340

The company's right to fix the commencing and finishing times of shifts from time to time.

PN341

So there's a clear right there, and the award says a right. And we say that right is governed by the notice periods required for shift workers. However, if the Commission was inclined to say there is some substance to the union's argument, we say that substance is as follows. It is not about whether we can determine by agreement whether people go from 12 to eight hours or 12 to nine and a half, or from day work to shift work, whether it's eight or nine and a half, that is not an area which requires agreement if adequate notice is given.

PN342

There may be a secondary agreement, if the Commission sees some favour in the union's submissions, that what is subject to agreement between the parties is the actual start and finish times of those shifts, and that's what is contemplated in there. So we could say conceptually that the company has the right with the appropriate notice to introduce the nine and a half hour shifts, but what has to come by mutual agreement is the actual start and finish times.

PN343

Now, we say we are not inclined to that argument because we rely upon the words above it, which says "the company's right to commence finishing times and starting times of shifts." And we say that is contemplated within the clauses dealing with shift workers. We put that as a third argument to you, if you see some merit in the union's position. So in summary we say that the Commission should dismiss the union's view in relation to this, and accept the primary position of the company, that the award clearly contemplates the ability to move shift workers and day workers by the appropriate notice.

PN344

We say the Commission should agree with the company that there is an express inconsistency and therefore the company does not require agreement around the nine and a half hour shifts. And we say it is clear and specific in that area. We then say that the nine and a half hour shift is also fair and reasonable to our employees in contrast to the eight hour shifts, and we believe that that would clearly fit within balancing our rights to manage our business versus the rights of our employees.

PN345

As Mr Richardson said, we would appreciate the Commission dealing with this matter expeditiously, bearing in mind that the Commission has to give consideration to the arguments that were put to them. What we would also say on a prima facie basis, that we have asked employees to submit to the organisation by close of business on Wednesday their views on their preferred shifts. We say that that should go ahead still, subject to any outcome of the Commission's decision, because the issue before us, as the Commission well knows, is that the contemplated change is contemplated by the 21st, and we say that that information should be given to the company so that we can deal with individual concerns with as much time as possible. Does the Commission have any questions?

PN346

THE SENIOR DEPUTY PRESIDENT: No, I don't think so, thank you. That's quite helpful, thank you. Mr Richardson, do you want to say anything in response?

PN347

MR RICHARDSON: Yes, your Honour, and I'll be brief. In our submission, Mr Styles confuses the systems of work which were referred to at clauses 10 and 25.4, and rosters. Rosters reflect the arrangement of ordinary working hours. Systems of work are whether one is a day worker or a shift worker, be that a one, two or three shift worker. Mr Styles indicates that in the company's interpretation, in the absence of agreement all that is required is notice. Yet there is no provision that he has taken you to, and we suggest that there is no provision that says that. That is Mr Styles' quantum leap, respectfully.

PN348

Mr Styles has failed, in our submission, to provide any interpretation of that part of clause 25.1.2(a) that says the arrangement of ordinary working hours is by agreement. It may be regrettable that, if the union's interpretation is correct, that the company's ability to implement the change that it wants in the absence of agreement is frustrated. But the authorities are clear on that. Mr Styles has failed to offer any interpretation or any construction of those words in clause 25.1.2(a). He suggests that there is an inconsistency between the two awards.

PN349

The union acknowledge that there is tension, but rejects the suggestion that there is inconsistency. Mr Styles has failed to provide any interpretation in his company's view as to what clause 7.2 means. It's simply been ignored. And if the Commission were encouraged to adopt that view, the Commission would be effectively nullifying certain provisions within the industry, and that would be, we say, contrary to long and established authority.

PN350

Interestingly though, your Honour, there is a contradiction within Mr Styles' submission. He talks about clause 7.1 using the word shall, which he then says is a mandatory provision, and then implicitly he contrast that with the use of the word may at clause 25.1 and 2(b), which implies some discretion or lack of mandatory nature. Your Honour, I draw the attention briefly to the two clauses that appear to form the crux of Mr Styles' submission, which are 25.4 and 10, which talk about may, not shall.

PN351

The right existed to the employer to simply allocate employees from day work to shift work, or vice versa, to meet the needs of the company or the industry. Then why does that provision not say - I beg your pardon, I said 25.4, and I should have said 25.5. Why do those clauses not say an employee shall be required to work? And we say that the reason that they say may is because, again, the ability to transfer an employee from one system to another, of work to another, exists. There is no dispute. What is at dispute if what that system of work is? And in our submission the system of work, be it eight hours, nine and a half, 12, or any other variation of shift work is what must be agreed.

PN352

But when there is an agreement as to what that system of work is, then there is a right to the employer to move people backwards and forwards between different systems of work. But there is no agreement on nine and a half hours, and the parent award makes clear that there should be. Now, we've heard Mr Styles say that in the event that the union is successful in arguing that the nine and a half hour shift requires agreement, then we say that we don't have to reach agreement for option 1. We say, well, that's not the case either, because at the moment people are either day workers or 12 hour shift workers. And so whether they revert to option 1, which is a traditional three by eight shift, is another matter that requires agreement.

PN353

It is not that the union is endeavouring to be unreasonable. We say these are the rights that exist. It's fine for Mr Styles to say there is some inconsistency, but then to ignore those clauses which don't serve his argument. The hours of work award was created by consent. We say that's the matter that the Commission should have regard to. To the extent that the antecedent award and, for that matter, the Full Bench are relevant. They're relevant in this sense; that they are extrinsic evidence that the Commission may have regard to. And we reject the assertion that paragraph 42 is limited to clause 25.1. The Full Bench makes the observation that the arrangement of ordinary hours, the working of ordinary hours is to be the subject of agreement at the workplace.

PN354

Finally, your Honour, two points. Mr Styles says, well, look, if in some way the union is correct, and to the extent that we say agreement is necessary, it's that we need to reach agreement with our employees in order to set their start and finish times. And we say the exact opposite. That is a right prescribed to the company in 25.1.2(a), the company's right to fix the commencing and finishing times of shifts. In our words, the ability to say, Mr Richardson, you start work at 7 o'clock and, Mr Styles, you start work at 8 o'clock. Commencing and finishing times, in our submission, is the same as start and finish times.

PN355

And Mr Styles in his secondary submission, or his alternative submission there is wrong. So that the words are clear in clause 7.1, clause 7.2 of the hours award are clear, and one can simply not say there is an inconsistency and therefore 25.1.2 does not apply. It is clear that it was entered into by consent by the parties, and the Commission should provide the ordinary meaning to the words within the clauses that form the basis of these proceedings.

PN356

Your Honour, finally, in respect of the forms that the employees have been asked to complete, if I could just quickly make a submission to you on that, and if Mr Styles wishes to make a submission in reply I won't oppose that. The form appears at page 18. The union, in consideration of the fact that the parties have heard this matter today, takes no issue with the requirement that the employees complete the forms by 6 April, but we would ask that you give consideration in reserving your decision to issuing a direction pursuant to section 111(1)(t), where the company would be obliged to advise employees that this matter is under advisement and consideration by the Commission, and that it should not be assumed at this point in time that either option 1 or option 2 will take effect from 21 April.

PN357

So put another way, the union will create no barrier to the provision of information sought by the company, but we believe that the company should advise employees that whether option 1 or option 2, or to put that the other way around, option 2 and option 1 will be implemented, has yet to be determined by the Commission. And again in closing we would thank you for your assistance and you time today. If the Commission pleases.

PN358

THE SENIOR DEPUTY PRESIDENT: Thank you. Perhaps before I give Mr Styles opportunity to just respond on that suggestion about the information sought from the employees, I might just seek your assistance on 25.1.2(a). You've referred in just that recent submission to the company's right to fix the commencing and finishing times of shifts. Now, the first right in that clause is the right to fix the daily hours of work for any day worker or shift worker from time to time within the spread of hours. Just to assist me can you just elucidate how that right is distinguished from the matter which has to be agreed, which is the arrangement of ordinary working hours. You might have done that earlier on, but it might just assist me if you do it again.

PN359

MR RICHARDSON: Your Honour, I did address you on that during my submission in-chief. We say that the entire part of that provision should be read, and I will just read it:

PN360

Subject to the company's right to fix the daily hours of work for any day worker or shift workers from time to time within the spread of hours in 25.2.1.

PN361

I then direct your attention to 25.2.1, where it talks about:

PN362

The ordinary hours of work may be worked continuously between 7 am and 6 pm on any or all of the days of the week on Monday to Friday.

PN363

And what I said in my submissions in-chief is that to the extent the company has a right there, it's curtailed or it's qualified by 25.2.1. And what I've suggested in my submissions in-chief is that there's another argument that suggests that the ability for an employee to work outside of Monday to Friday also requires agreement, not just for day workers but for shift workers. So to the extent that we say there may be some conflict, there may be conflict between the first right the company has and the second right, but nonetheless there is the third matter, which is an obligation, that is to reach agreement. But we say it's open to argument that fixing the daily hours means deciding on which day or days of the week within the spread the work will be performed.

PN364

If I might, in closing, add, that's to the extent that they are relevant, the antecedent provisions are relevant in that sense. And what I said in my submissions in-chief is that there is no reference within the shift work provisions to a spread of hours. There is a definition within clause 4 of the seven day shift worker but, with respect, unless proven wrong, that is all there is. So arguably there is also a requirement to reach agreement in the event that employees are seven day workers.

PN365

Now, that isn't an argument that we necessarily press, because the existing shift workers are effectively seven day continuous shift workers. But fixing the daily hours does not, in our submission, mean that the company has the right to implement either option 1 or their preferred option, namely, option 2. If the Commission pleases.

PN366

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN367

MR STYLES: In terms of the request we put in terms of the information, I appreciate what Mr Richardson. The terms I think we would look at it is that we would put a note to all staff to advise them that in our view they should consider completing these forms by the designated date, but indicate to them this matter is subject to a matter before the Commission.

PN368

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think Mr Richardson's words were, advise the employees the matter is yet to be determined, or words to that effect I think would be appropriate. So on that, well, I'm about to reserve my decision, which I will certainly attempt to hand down in an expeditious manner, given the timing of the events affecting this part of a Qantas operation, but in doing so I acknowledge Mr Richardson's agreement for the request for information as outlined at page 18 of R4 to remain, that it remains for the employees to fill out and return by 6 April. At the same time the company is requested to advise the employees that whether option 1 or 2, or either is proceeded with, is a matter yet to be determined and, as I say, I will reserve my decision, and had that down expeditiously. The Commission is adjourned.

<ADJOURNED INDEFINITELY [5.20AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R3 ISSUES ON WHICH THERE IS NO AGREEMENT PN196
EXHIBIT #R4 SECOND EMPLOYEE BRIEFING DATED 29/03/2005 PN197
EXHIBIT #R5 AUTHORITIES PN229
EXHIBIT #R6 FULL BENCH DECISION PN243