C2005/493, Transcript of Proceedings [2006] AIRCTrans 109 (31 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13968-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/493

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
QANTAS AIRWAYS LIMITED
s.99 - Notification of an industrial dispute
(C2005/493)

MELBOURNE

2.16PM, THURSDAY, 12 JANUARY 2006

PN1

MS A RICHARDS: I appear on behalf of the Transport Workers' Union of Australia. With me is MR S NASH from the Victorian Tasmanian Branch and also accompanying me are three delegates from the Qantas Ramp Services area at Melbourne Airport.

PN2

MR P SMITH: I appear for Qantas Airways Limited and with me are two members of the management team from the airport.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Richards, I don't know anything about this, so you better tell me something.

PN4

MS RICHARDS: Certainly, your Honour. What I would propose to do is, for the parties basically to put brief submissions on the record and then we would seek to convene in to conference.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MS RICHARDS: In relation to I suppose a brief summary of this dispute, this dispute relates to a refusal by Qantas to pay meal allowances at Melbourne ramp operations in accordance with Clause 30.4.3 of the Airline Operations Transport Workers' Award 1998 and this is basically for the period from 26 April 1998 to
26 April 2004. For the purposes of transcript, the clause that I'm referring to, Clause 30.4.3, provides:

PN7

An employee who is working on recall or on a day off must be paid a meal allowance of -

PN8

I'll just put X dollars for the purposes of this discussion:

PN9

If the employee performs four hours actual work. This applies for each four hour period worked or the employee must be provided with a suitable meal by the employer (or be paid).

PN10

Basically the crux of this dispute relates to whether employees during this period actually performed four hours actual work and were entitled to the allowance. My understanding is, there's no dispute between the parties about the interpretation of that particular clause. It really relates to the available evidence and whether employees did actually perform four hours actual work during that period.

PN11

THE SENIOR DEPUTY PRESIDENT: Over a six year period?

PN12

MS RICHARDS: Our claim that was served on the company was based on six years and the reason for that - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Why has it taken so long to make this claim?

PN14

MS RICHARDS: It's only recently come to our attention and I suppose the complexities of that relate to the fact that, a minimum of four hours is paid on a four hour call in, notwithstanding whether time worked was actually less. So because the issue relates to the actual hours worked it didn't really come to our attention until April 2004. So that's where the time period comes in.

PN15

THE SENIOR DEPUTY PRESIDENT: When did you approach Qantas about this?

PN16

MS RICHARDS: We approached Qantas on 26 April 2004 and that's where our six year period went, but there has been some correspondence back and forth and the parties are agreed that we're looking at that particular period of time.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. And nothing's happened between April 04 and January 06?

PN18

MS RICHARDS: The parties have actually been engaging in discussions with that, but we've come to a position where we're in dispute and we're seeking the assistance of the Commission to see whether you can help us resolve the dispute, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN20

MS RICHARDS: Further, I'd just like to add that, our understanding is that, the company has indicated that they will intend to rely on payroll and payroll related data to indicate that employees did not perform four hours actual work as they say a meal break has been taken during that four hour period. We will say that this is incorrect. We say that the level eight supervisors who filled out these reports erroneously ticked the box on the record of attendance sheet saying that a meal break was taken when in fact what they thought they were filling out was that the employees were entitled to a meal allowance.

PN21

Notwithstanding this, the records will indicate in majority that three hours and
30 minutes was in fact worked by these employees, when if a meal break was taken, they'd only be entitled to a 20 minute paid meal break not half an hour and we say that would be counted as time worked. So as a short summary, they're our submissions at the moment, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Smith.

PN23

MR SMITH: Thank you, your Honour. I might just indicate at the outset, your Honour, that the company's prepared to participate on a without prejudice basis in conciliation as suggested by the union. So I might just make a couple of short observations in response, but other than that we can perhaps traverse things in more detail in private conference.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR SMITH: But before doing that, I'd also just make this observation that, we understand that the union's claimed to, in effect, be about alleged underpayment under the award, so that they're essentially seeking to enforce an industrial instrument. So whilst we're here today to participate in the conciliation process, we would - - -

PN26

THE SENIOR DEPUTY PRESIDENT: You reserve your position.

PN27

MR SMITH: - - - we reserve our rights, yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR SMITH: In relation to the competency of the notification to attract a Commission jurisdiction in relation to alleged underpayments. Similarly, your Honour, and I know the union's not referred to it today, but there was an application to issue, for the Commission to issue a summons for production. The union hasn't sought and as I understand it, does not propose to seek to progress that application today. But I just take this opportunity to indicate that the company would look to be heard in response to that application if they were to subsequently seek to press it.

PN30

Otherwise, your Honour, as I've indicated, we're prepared to participate in a without prejudice conciliation. We did write to the union following a number of meetings and exchanges of payroll records and there was a letter exchanged between the parties on 25 October. If it would assist, I'd take your Honour to it.

PN31

THE SENIOR DEPUTY PRESIDENT: Well, perhaps in conference rather than now.

PN32

MR SMITH: Certainly, your Honour. The only thing I would like to indicate before proceeding in to conference in response to what my friend has said and otherwise reserve our rights generally, is that, we'd say that, the union has not in any way identified the employees or the specified times where they say individuals were recalled to work overtime, who received a minimum payment of four hours pay and did not receive a meal allowance as alleged. How we would have it, of course, is that, employees could be called in to do a short period of work on overtime. What they're entitled to under the award, as I understand it, is a minimum payment of four hours.

PN33

So whilst there will be records that suggest that an employee has received four hours pay, that's not to say that they've necessarily performed four hours actual work. That's one issue. The second issue in relation to that is that, payroll records suggest that notwithstanding that they've worked four or more hours, that they have also had a meal break. Now, once they've - - -

PN34

THE SENIOR DEPUTY PRESIDENT: If they've had the meal breaks are they not entitled to the allowance? Is that right?

PN35

MR SMITH: Well, that's it, your Honour, because we would say that, the allowance in order to be triggered requires four hour actual work. So if - - -

PN36

THE SENIOR DEPUTY PRESIDENT: And no meal break.

PN37

MR SMITH: Yes. Because if you're - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Is that what it means?

PN39

MR SMITH: If you're on a meal break we would say by definition you are not performing work and the distinction we would draw is, nothing turns on whether the meal break is paid or unpaid. In this circumstance the meal break would be paid.

PN40

THE SENIOR DEPUTY PRESIDENT: Perhaps in conference we can see if I understand the meaning of the clause properly.

PN41

MR SMITH: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: And understand how the parties read it. Yes.

PN43

MR SMITH: So, your Honour, we have met with the union, provided them with samples of payroll records which we say indicate on their face that the employees have been correctly paid and the union has not provided any evidence to us or any records, or any material that would otherwise suggest to the contrary.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN45

MR SMITH: Thank you.

PN46

THE SENIOR DEPUTY PRESIDENT: Do we want to go in to conference now, do we? Yes, well, we'll go off the record, thanks.

<NO FURTHER PROCEEDINGS RECORDED