AG2006/3409, Transcript of Proceedings [2006] AIRCTrans 422 (23 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14447-1

COMMISSIONER RAFFAELLI

AG2006/3409

APPLICATION BY JETSTAR AIRWAYS PTY LIMITED & AUSTRALIAN FEDERATION OF AIR PILOTS
s.170MD(2) - Variation of certified agreement by employer or union
(AG2006/3409)

SYDNEY

10.19AM, WEDNESDAY, 08 MARCH 2006

PN1

MR F PARRY: I seek leave to appear for the applicant. With me is
MR N OGILVIE. If the Commission pleases.

PN2

MR P PASFIELD: I seek leave to appear for the Australian Federation of Air Pilots.

PN3

MR A MACKEN: I seek leave to appear for an intervener, Australian and International Pilots Association, an organisation registered under the Act.

PN4

THE COMMISSIONER: Yes. Well, in the circumstances leave is granted to
Mr Parry and Mr Pasfield. But the intervention is a different matter and if you can intervene, Mr Macken, leave will be granted to you. Do you want to speak about your intervention?

PN5

MR MACKEN: Yes. Sir, I appreciate that a ruling on the intervention might have to be deferred until there is material before the Commission, but if the basis of the applicant was to come clear. Sir, for the purpose of today’s proceedings the application of the Australian and International Pilots Association is that these proceedings should not continue other than for programming for directions. That application is made on seven basis which I will shortly outline. I appreciate they will not be supported by evidence at this stage because of the somewhat extraordinary circumstances in which this matter comes before the Commission.

PN6

Sir, as we understand a ballot of pilots employed by Jetstar closed at 12 noon on Monday and an application was made to the Commission for the variation of the agreement purportedly approved by majority of those voting to be certified. That application was made on or about 7 March and it’s before the Commission on
8 March. At the time when the employer made that application in those circumstances for the matter to be dealt with expeditiously the employer knew that it had been asked to give an undertaking and that if it did not give that undertaking that an application to the Federal Court of Australia was foreshadowed.

PN7

And there is no doubt, sir, firstly that this application for the matter to be dealt with peremptorily was made by the employer with knowledge that there were foreshadowed proceedings in the Federal Court of Australia. Secondly, the application was made within 24 hours of the closure of a ballot, the reliability of which had been called in question in material exchanged among the parties’ principal during the conduct of the ballot itself and the application was made within 24 hours of the ballot closing, as I have earlier said. Thirdly, there is no urgency known to us for this matter to be dealt with with that extraordinary expedition by the Commission other than to shut out the material which we wished the Commission to have.

PN8

The application for variation looks to preparation for the commencement of long haul flying by a pilot, predominantly domestic pilots, under the Jetstar badge. My understanding and my instructions is that that flying will not commence, that long haul flying will not commence, at the earliest until in or about August of this year. There is no suggestion whatever that any urgency attaches and non has been suggested on the material that we have seen why the Commission should hasten to consider for approval the material now before it. Fourthly and in a way of which notice has been given to those principally involved, the Australian and International Pilots Association strongly asserts that there have been invalidating defects in the manner in which the ballot was conducted.

PN9

In particular it is to be alleged that the affirmative vote purportedly recorded in support of this was induced by threats to those who were admitted to the ballot, that if they did not approve what was put before them they would lose the flying which was the subject of the application. So that is a very serious allegation and it is a matter which calls for evidence and reliable evidence to be put before the Commission. On my instructions that evidence exists. It is in writing. It is palpable. It is matter which the Commission should properly take into account in deciding whether or not the provisions of the Act were observed in the circumstances in which an affirmative vote was purportedly recorded.

PN10

It is to be alleged in proceedings which have been instituted in the Federal Court of Australia that there has been systematic breaches of section 298K of the Workplace Relations Act 1996 and some of those breaches are directly relevant to the issues that the Commission will have to ultimately ask upon in deciding whether or not the application by Jetstar should be approved. The breach in particular involves the exclusion of long haul pilots from flying which is to be allocated to Jetstar by reason of or in part, by reason of the fact that those long haul pilots have the benefit of an industrial instrument of this Commission, which is EBA7 which, sir, you will recall you certified on 16 November 2005.

PN11

THE COMMISSIONER: This is the Qantas Pilots EBA7, is it?

PN12

MR MACKEN: Yes, it is. And it is to be suggested that the exclusion is not simply theoretical or fanciful, but is actually impacting on the pilots concerned at present. Some, a grouping of pilots who at present fly the A330 aircraft out of a Melbourne base, had been given a direction to relocate from that base so that their aircraft or in consequence of their aircraft being assigned with the associated flying to Jetstar. And that is a material fact amongst others relied on in proceedings in the Federal Court. It is ironic, sir, that the proceedings in the Federal Court have had an application recorded from Qantas Airways Limited that they be allowed a reasonable opportunity to respond to what is to be alleged in that court and very properly the court regards that as a proper request and is minded to accede to it. In exactly the same way, sir, we make that request here.

PN13

There is material which we wish to put before the Commission to persuade the Commission that in its present form this application for variation should not be considered at this time until the Commission has had the benefit of hearing objections to that course arising from the conduct of the ballot and associated matters which the Australian and International Pilots Association wishes to bring forward. Sir, from the point of view of the industrial consequences of this matter, from the point of view of those whom I represent, you will be aware, sir, that the material before you seeks to give the status of a designated award for the operation of the no-disadvantage test to an award known as the Pilots’ (General Aviation) Award 1998 and for the first time to apply the basic provisions of that award as a test of the fairness, or otherwise, of a certified agreement intended to apply for long haul flying.

PN14

Finally, sir, if this agreement is certified, as we strongly submit it should not be without full examination of the serious matters which we are foreshadowing to the Commission, the consequence will be that Qantas long haul pilots will find themselves governed by an instrument if certified pursuant to the present application, although not one of those pilots was permitted to vote in the ballot for the approval or otherwise of that application. So these are matters to be gone into in evidence, but I inform the Commission that there is an agreement in place between Qantas, Jetstar, the Australian and International Pilots Association and a body called the Jetstar Pilots Council and unregistered body of representatives, so it is said of pilots employed by Jetstar, under which there is a ghost seniority list allocating slots in Jetstar flying, which is the one relevant for present purposes, to Qantas pilots.

PN15

In circumstances where if the Qantas pilots are assigned pursuant to that memorandum of agreement they will be bound by whatever have been found to be the appropriate industrial instrument binding on Jetstar. That agreement was made. It’s called A Memorandum of Understanding, it was made in August 2004 and it is operative now. So the distinctions sought to be made before you, sir, in these and related proceedings, that this is nothing to do with Qantas, this is nothing to do with the Australian and International Pilots Association and their concerns are for statutory reasons irrelevant is utterly unsound. When that document is before you it will be clear that the memorandum of understanding will have the effect that Qantas pilots, Qantas long haul pilots, assign under that instrument to the service of Jetstar on long haul or other flying will be bound by the application which is before you.

PN16

And as a matter of natural justice, sir, it is most strongly submitted that if that is found to be correct then there are serious questions raised about the ethicacy and the validity of the ballot that was held in circumstances where those pilots were not accorded a vote. Sir, for all of those reasons our application is that this application should be adjourned for some reasonable time to enable us to put before the Commission material in substantiation of what has been said and for Qantas or Jetstar to reply to it before the Commission attempts to exercise its very responsible statutory roles.

PN17

This is one of the, from the point of view from the intervener or it would be intervener, the Australian and International Pilots Association, this is possibly the most serious matter involving the industrial regulation of its members ever to come before the Commission in the 25 year history of the Australian and International Pilots Association and we dare to say that having regard to the issues before the Federal Court it is a matter proper for consideration, mature consideration, in the light of all relevant material by the Commission. Now, we can work to a fairly tight deadline, but our application is that the matter should stand adjourned for, say, two weeks to permit that material to be assembled and put before the Commission.

PN18

I remind the Commission unnecessarily that at any time perhaps half of the members of AIPA and perhaps a smaller proportion of the members of Jetstar, the Jetstar pilots whose evidence we would seek to call, will be engaged out of the jurisdiction and that’s why we think two weeks is an appropriate time. If the Commission pleases.

PN19

THE COMMISSIONER: Mr Macken, the problem is that section 43 makes it clearer too that AIPA is not to be granted intervention rights. At (1) the Commission might grant it in other circumstances. But if it’s a division 2 or division 3 issue a person may be heard. Well, there’s no person, is there? That’s the problem.

PN20

MR MACKEN: Sir, that problem can be solved in approximately 10 seconds by my inviting the president of the Australian and International Pilots - - -

PN21

THE COMMISSIONER: Yes, but that’s the organisation. Anyway look, perhaps I'll hear from the others first. Thank you, Mr Macken.

PN22

MR MACKEN: Thank you, Commissioner.

PN23

THE COMMISSIONER: Mr Parry?

PN24

MR PARRY: If the Commission pleases. There has been a wide variety of assertions made all put from the perspective of AIPA and Qantas pilots being members of AIPA. Mr Macken has got, we would submit, rather ahead of himself in his assertions here today. Before making an application for an adjournment he should establish that he has a right to intervene and make such an application. And we would be submitting an appropriate time and now, I’m in the hands of the Commission, but we would be saying firstly, he doesn’t have any right to intervene because of the operation of section 43(2) and secondly he has no interest direct or otherwise under section 43(1).

PN25

Now, there is authority of this Commission dealing with the effect of section 43(2) on applications to vary which adopts the section 43(2) approach. So we say the organisation has no right to intervene. Perhaps for your assistance, Commissioner, there is a decision of Commissioner Hoffman which is dealt with in National Transport Operations Pty Ltd Certified Agreement 2002. It’s a print of this Commission, PR921970. I have, not quite knowing which particular authorities are going to be required, I have one copy of that. I provide that to the Commission.

PN26

THE COMMISSIONER: Yes, thank you.

PN27

MR PARRY: Now, in that particular case there was an application by the TWU to intervene in a matter involving a variation of the National Transport Operations Pty Certified Agreement 2002. Now, it doesn’t appear to have been in issue that the TWU could cover the employees of National Transport. So that’s an important part of the section I'll get to shortly. But there was this debate that the Commission has constituted today, has raised about the operation of section 43(1) and (2) and perhaps it’s paragraph 10, Commissioner. Paragraph 10 deals with, as Commissioner Hoffman said:

PN28

The scheme of the Act and its policy intention clearly provide for s.170LK Agreements, or variations, in my ...(reads)... from granting leave to intervene to an organisation of employees which has not made the agreement

PN29

So that’s the policy. Then the application of that to this particular circumstance was dealt with in paragraph 18 and that reads:

PN30

The Commission is of the opinion that the scheme of the Act, the Act read as a whole, and its policy intention ...(reads)... been withdrawn, in accordance with s.170LK(4) and (6), then the Commission must not grant leave to intervene.

PN31

The union was requested to represent some eight or so contractors. It submitted members of the union and there was no evidence of those persons requests having been withdrawn. So we, with respect, submit that Commissioner Hoffman was correct in applying such an approach. That is that section 43(2) does operate in respect of variation applications and precludes the application that is being sought by AIPA. Now, Commissioner Hoffman went on at paragraph 19 and said that section 43(2) applies and then he said even if I am wrong section 43(1) would apply. Now, section 43(1) - and he held ultimately in that case that the TWU could intervene under section 43(1). As I indicated it was fairly clear in that particular case that TWU had coverage of people that were employed under the agreement.

PN32

That’s not the circumstance we so submit here. The position here is that AIPA is not a body whose rights are directly affected. They do not have the eligibility rule that enables it to represent pilots employed by Jetstar. They are a classic third party with regard to this agreement. The parties to this agreement and those bound are the employer, the employees and the AFAP. AIPA do not have an interest in that and we contend it’s fairly clear, I’m not sure that it’s been contested, that AIPA does not have coverage of Jetstar pilots. Now, I have the eligibility rules here. We, I’m sure the Commission as constituted, is well familiar with them - making an assumption, Commissioner.

PN33

The Commission might recall that the AFAP have a certain eligibility rule which is a mirror reflection of the A rule. We say the AFAP clearly have coverage and that means AIPA don’t. So they don’t have any representation rights and I do make the point that they’ve never asserted any such rights through the process under section 170LK(4) or (6) or provided certificates under section 170LKA. None have been issued, none have been sought. So we say that with regard to this intervention matter, firstly AIPA can’t intervene and the Commission notes that I think there’s a decision of a full bench which I don’t think I have a copy of. The Commission might recall there was a decision of a full bench with regard to Multifix Constructions late last year on 30 September 2005. That’s in print 963297.

PN34

That, Commissioner, dealt with that argument that you could get around section 43(2) and rely on 43(1) by saying there wasn’t a valid application and so forth. The Full Bench pretty comprehensively knocked that way of getting around section 43(2) on the head. So we say that the scheme of the Act with regard to 43(2) would preclude the AIPA from getting in through the back door under 43(1). Now, I note that that’s the appearance as it’s put at the moment and there’s a suggestion that a person might appear. Well, we’ll make submissions about that if and when that application is so made. But we say that this intervention should not be granted and we’ll certainly have a lot to say about the sort of assertions and allegations made even if such an intervention is granted. If the Commission pleases.

PN35

THE COMMISSIONER: Yes. Mr Pasfield?

PN36

MR PASFIELD: Yes, Commissioner. The Federation documents supports the submissions of Mr Parry and opposes the intervention today of the AIPA.

PN37

THE COMMISSIONER: Yes, Mr Macken?

PN38

MR MACKEN: I wondered if he wished to hear me in reply to what has been said at this time?

PN39

THE COMMISSIONER: Yes.

PN40

MR MACKEN: Sir, there is a fundamental misconception of our position on behalf of my learned friend, Mr Parry, and the extent to which it’s adopted by
Mr Pasfield. I don’t want to argue now, as I said to the Commissioner at the outset, of the basis of a right to intervene because we are in difficulties in doing that now. And that is why Mr Parry seeks to address that question now within 24 hours of the application being lodged. We are very happy to address the issues that he has raised and has reminded the Commissioner about and all that is necessary to meet those is for those issues to be reserved until an appropriate time when we can be erred in enlargement of whatever we want to say about section 43(2), section 43(1) and the simple administrative measures with which contrived difficulties of that kind can be overcome.

PN41

But can I ask you, sir, in the exercise of the fundamental role of the Commission to address the real issue raised by this. Supposing that a party appeared before the Commission - and I am now adopting a hypothetical case - and said there was a fundamental problem with a ballot which has been presented to the Commission as being a valid bona fide expression of the views of the pilots, in this case, who record that vote. Would the Commission really take refuge in issues of intervention or the like and say look, you might be quite right. It may be those ballots - and this is a hypothetical case - were fundamentally flawed and do not represent the will of the members concerned. You might be quite right about that, but I’m not going to take that into account because I’ve read section 43(2) and I don’t think you can be heard to put that before me.

PN42

Our submission is the Commission will hear that and will want to hear that because its statutory jurisdiction requires that it should do so. Its statutory jurisdiction also requires that it avert to whether or not there have been breaches of the Workplace Relations Act in a relevant context related to the procedure by which the matter came before the Commission. We want to be heard on that. The question of intervention and whether or role ultimately is accorded to AIPA as an intervener or to Captain Ian Woods as an individual or to a Jetstar pilot as an individual is a different issue and one for another day. If we had had the sort of notice that I’ve invited we should, we have the responsibility of addressing that and we are open to criticism if we fail to discharge the onus that might be found to rest on us.

PN43

What we shouldn’t be asked to do is to debate substantive matters now which can only be foreshadowed when the appropriate course, in fairness to all concerned including to Jetstar and AFAP as much as AIPA, is to adjourn the matter to a date on which that material can be put before the Commission. Now, the difficulties that have been flagged in the way of that may prove to be illusory or they may prove to be substantive, but the Commission will, in our submission, want to hear is there something wrong with the procedure that resulted in an outcome which is being submitted for certification by the Commission. If there is nothing wrong, there is nothing to fear. There will be no disadvantage to any party. There is no urgency, sir, about this.

PN44

It hasn’t been suggested there is. And when Mr Parry said that AIPA or AIPA members have no relevant interest in this, and with respect to him pontificated about the constitutional coverage of AIPA, what he was passing over was what I said by way of foreshadowing to the Commission a little earlier. There is in being an industrial instrument under which Qantas long haul pilots will fly under a Jetstar badge. And if they do, they will be bound by the instrument that is ultimately brought into being, either in these proceedings or in some other proceedings. There is no doubt about the reality of the interest which AIPA has in this matter and no one has denied that.

PN45

With regard to the constitutional coverage I am aware of the ingenuity that has been expended in putting forward the idea that Jetstar is a fundamentally different entity from Qantas. If Jetstar ever acted on that brazen belief I think Mr Dixon, the CEO, would correct it peremptorily. One is the creature of the other. With regard to the question of whether Jetstar is now principally engaged in domestic flying, or putting it more appositely, is not engaged principally in international flying, that’s an argument, sir, which I’m very happy to have in due course and there is material to be put before you. That’s a question of constitutional coverage. It’s not a matter to be glibly dealt with by Mr Parry. It’s a matter for serious evidence as to what certain words mean in certain documents in the AFAP constitution, what they mean in the AIPA constitution.

PN46

All I’m putting, sir, in this regard is these are problems and real problems for another day. I don’t think you should conclude that there is anything specious or empty in what I’m putting before you and I don’t think you should disregard the necessity to examine them on proper notice within a reasonable time scale at which these matters can be either made good or discounted. That’s the application that we’re making. The question of intervention, sir, can stand over. But the question of adjournment of this application to a date fair to the parties, not involving any inconvenience to any party, before 31 March if that’s the particular concern we have no difficulty with that. But we do respectfully and firmly seek a reasonable opportunity to put those matters to make those matters good.

PN47

And I point out this is a matter, sir, perhaps I should hand up a letter that was sent by AIPA to Qantas and to Jetstar on 3 March seeking certain undertakings. I assume my friends have that document. Mr Pasfield may not. Sir, that sought an undertaking from Jetstar by 9 am on Monday 6 March that:

PN48

Jetstar by itself, its servants or agents take no further step in the certification of the variation to the Jetstar ...(reads)... Federal Court of Australia for such orders as AIPA may be advised without further notice to Qantas and Jetstar.

PN49

Sir, the undertakings were not given, but what did happen was an application was made to the Federal Court by letter requesting a reasonable opportunity to deal with whatever application AIPA might propose to make. The Federal Court has acceded to that request - well, I don’t have the details - and so it should, if I may respectfully say so. And, sir, equally respectfully so should this Commission. If there are real issued to be tried the parties or those asserting those matters, if the matters are relevant, should be accorded an opportunity to be heard. If the Commission pleases.

PN50

THE COMMISSIONER: Mr Macken, unfortunately the answer to your first question which was would the Commission move to certify an agreement if somebody came along, another organisation, and said there’s a problem with the ballot? Well, the answer to that is yes it would because the parliament has told the Commission that it’s not to listen to third parties and it really doesn’t matter what it might be known. If someone is a third party they don’t have any rights. Now, the Commission then dismisses that. It then proceeds to look at the provisions of LT and LU. It may be that you can ask various questions. But that’s the problem you have, isn’t it?

PN51

MR MACKEN: No, sir.

PN52

THE COMMISSIONER: You’re a third party and if there has been problems with people being forced to vote a particular way well, they have to take action. They’re entitled to take action in the court. I can’t do anything about that.

PN53

MR MACKEN: Sir, let me deal with that. If one accepts that premise, and with great respect I have to respectfully dissent, supposing there is a Jetstar pilot who says look, I have to tell you as I told AIPA at the time it is being pushed to us, we have no choice in this, if we don’t vote for this, this flying will go and our employment will be affected. In view of that what possible choice do I have but to vote in favour of that proposal and to urge others to do likewise because the alternative is for me a situation of great seriousness. Now, assume that a Jetstar pilot has that view and ask yourself, what does he do about it. Until 12 noon on Monday he couldn’t do anything about it because he couldn’t know until after 12 noon on Monday whether there was any need to do anything about it.

PN54

Supposing he then finds, and it wasn’t advertised until today, that Jetstar pilots have approved the vote purportedly, he does decide to come to the Commission to say look, Commissioner, with great respect there was something wrong with that and I want to tell you about it. The Commission says too late son.

PN55

THE COMMISSIONER: No, the Commission doesn’t say that because then that person comes along as a person. I don’t have that. I have an organisation coming along. That’s my point. But in any case, still your proposition is that it’s a Jetstar pilot, which then brings me to Mr Parry’s point. AIPA has no coverage of Jetstar pilots. Your concern is that ultimately, and not just ultimately, but quite soon AIPA pilots employed by Qantas will be affected, either squeezed out of jobs or forced to fly jobs for Jetstar as some kind of contractor. I get that, but how is that an immediate interest?

PN56

MR MACKEN: Sir, the immediate interest has occurred already in that - there are two answers to your question but I'll deal with the concrete one now. Qantas long haul pilots are being directed to give up a Melbourne basing where they are presently domicile in consequence of a decision by Qantas to transfer those aircraft to Jetstar, to make them available for Jetstar operations. That’s not theoretical, that’s imminent. They have a deadline. They have to elect by
30 March to respond to that direction. So the effect is immediate. The interesting thing is the aircraft are going to Jetstar and the infrastructure no doubt required to train and that sort of thing Jetstar pilots is going to Jetstar, but the Qantas long haul pilots who have the benefits of EBA7 are not being considered for doing that flying.

PN57

And it’s a matter for the Federal Court, but you ask the question why. And the answer is, or one of the answers is and under the Act it only has to be one, because the have the benefit of an instrument of this Commission. They are considered, I assume, too expensive because they are employed under terms and conditions which this Commission rule will be out to apply for long haul flying. So their interest is direct and immediate. If they, in those circumstances under the memorandum of understanding of August, are transferred across to Jetstar they will be employed under this instrument which is being hurried and harried through the Commission.

PN58

That’s not an ultimate effect, it’s an immediate one. Assuming those conditions derived ultimately be a test drawn from the General Aviation Award make that flying not possible for them they will be excluded from it as a direct result of the certification of this application for variation. Sir, dealing now with your first point about constitutional coverage of membership. We don’t accept for one minute we don’t have constitutional coverage for Jetstar pilots, we have members who are Jetstar pilots and there is no practical difficulty allowed reasonable time to do so to have those Jetstar pilots called before this Commission to testify to the matters from which I’ve spoken necessarily about from the bar table.

PN59

THE COMMISSIONER: Just because they’re members of the union doesn’t mean that the union has coverage of Jetstar. People can join whatever union they want and even a union that is akin to the employer with which they are currently working make no - a teacher can be a member of a teachers federation even if they’re working in a private school for the time being. It may not give them direct benefit, but certainly in the long term gives them an in.

PN60

MR MACKEN: Sir, can I disclose an interest? I was the draftsman of the rules of AIPA assisted by Tony McIntyre J who supplemented those efforts in a series of decisions in 1994 and 1996 and in due course, and I seek this opportunity, I’d like to persuade you to a different point of view to that to which you are inclined. I don’t want to go into it now, but the word principally is being made to do more work that it really should and I don’t personally have any doubt, for what it is worth, that AIPA does have constitutional coverage for Jetstar pilots. I think the spurious subterfuge of putting to the Commission that Jetstar is as it is, a separate corporate entity to Qantas, fades a little in comparison that the fact that Jetstar could not blow its nose unless Mr Jeff Dixon approved it doing so and supplied the Kleenex.

PN61

The whole of the funding of Jetstar, its operational integrity and direction, its policy is determined by Qantas. And although it is a separate corporate entity and some efforts are being made to give it a separate AOC the fundamental reality is it’s a related corporation, it’s a wholly owned subsidiary and Qantas long haul pilots do fly for Qantas subsidiaries. They regularly, I’m not sure how frequently, fly Australian Airlines for example which is a Qantas subsidiary, but an entity different to Qantas. Sir, all of these matters are real, but they should be gone into on proper notice to both parties. And if at the end of that process, sir, you are not disturbed in your conclusion that you have no alternative but to not hear some matters or to not hear them if put by some persons, we’d have to accept that.

PN62

But, sir, there is an obligation, with respect, in natural justice, some issues having been flagged for the Commission to hear them and to provide a proper opportunity to do so and not to prejudge them. The Commission wouldn’t, but not to seem to prejudge them. And in circumstances where the application is made in great haste by a party that knew that proceedings were foreshadowed in the Federal Court there’s questions of bona fides about the application itself and the circumstances in which the Commission is being sought to pass it forward unexamined or without, what we say, is proper examination. All we’re asking is time to discharge what the Commissioner may believe to be a very heavy onus on us or on a proper party. And we accept that.

PN63

THE COMMISSIONER: Yes, Mr Macken. I’ve heard the submissions. While there might be some interest I don’t think it is a relevant interest that AIPA has. Yes it’s affected, but you talk about both parties. Unfortunately I don’t see AIPA as a party to this agreement. Even if the intervention was corrected and it was made by Captain Woods, the problem with that is the Captain doesn’t, as far as I know, is not an employee of Jetstar and not one of the supposedly aggrieved pilots that were forced to vote in a particular way. Consequently there is no basis for granting intervention, either under 43(2) - in fact 43(2) says I shouldn’t - but as to 43(1) I exercise my discretion and not grant intervention.

PN64

Whatever is a point of concern of employees and even AIPA, well that perhaps needs to be worked out in the Federal Court. The conflict between the AIPA certified agreement and this certified agreement and persons who might move from the employment of Qantas to the employment of Jetstar on a seasonal basis is perhaps also something that courts my worry about in due course. Consequently, Mr Parry, you’ll address me on the application.

PN65

MR PARRY: If the Commission pleases. We have in the Commission Mr Rohan Garnett who is the deponent of the statutory declaration and also Mr Rick Heaton, the pilot head of the Jetstar Pilot Council. The Commission would probably be aware that on 6 October 2005 the Jetstar Airways Pilots Agreement 2005 was certified. There was an order made to that effect in PR963622. Included in that order was an order that the Australian Federation of Air Pilots also be bound by that agreement as they had complied with section 170M of the Act. At that time there was also a determination made. That was a determination made also on that day that the appropriate award was the Pilots (General Aviation) Award 1998.

PN66

Now, I think in transcript on that day it was made fairly clear that that award actually applies to pilots in Victoria, Northern Territory and the ACT because it is a common rule award. Therefore, in effect, it’s a relevant award for the purposes of those employees in those states. So we would take the determination to be read as applicable to employees outside those states or territories. There was also a clarification given at that time with regard to superannuation which I don’t need to trouble the Commission with the details of. The parties to the agreement, being the employer, the employees and the AFAP, have agreed to a variation. The Commission would be aware of the terms of section 170MD and the role of the Commission is set out in MD(3). That provides:

PN67

The Commission must, by order, approve the variation if, and must not approve the variation unless ...(reads)... certify the agreement as varied if it were a new agreement whose certification was applied for under this Part.

PN68

Now, 170MD(3)(b) takes the Commission back to the requirements of section 170LK because this was a section 170LK agreement. Now, there are rules of the Commission dealing with this matter being an application for variation. There is a rule 53 and this provides that an application to vary a certified agreement must be made in accordance with form R35. And there is before the Commission an application in accordance with form R35 and presumably that appears on the Commission file. It’s an application made by Jetstar. Does the Commission require - I think what the Commission has is a photocopy of that. Does the Commission require an original which has blue ink where the word Freehills appears rather that photocopied black ink? I don’t think it’s necessary under
the - - -

PN69

THE COMMISSIONER: No, I’m right in this. I follow you. I’m satisfied what’s before me.

PN70

MR PARRY: Now, there must be a copy of the variation or varied agreement and does the Commission, I think there is a copy of a document which has on the front page the Jetstar Airways Pty Ltd Jetstar Airways Pilots Agreement 2005 Wide Bodied Amendment?

PN71

THE COMMISSIONER: Yes.

PN72

MR PARRY: Now, that is a document which incorporates the amendments that are sought to be made and it doesn’t highlight them, that would make your life more difficult, Commissioner. However, we say that that varied agreement complies with the requirements of the rule 53 in any event. There is also to be, according to rule 53, a statutory declaration and the statutory declaration form R30 rule 49 presumably appears on the Commission’s file. That is declared by Rohan William Garnett. As I indicated Mr Garnett’s in the Commission. I won’t take the Commission through each and every line of this. It’s manifest that the employer is Jetstar Airways Pty Ltd.

PN73

There is reference to a distinct operational unit within the business being that of the work of pilots and first officers preparing and conducting commercial flights on domestic and international routes. The variation that we put before the Commission follows a process and the process that was followed is set out, I think, in chronological order commencing in clause 5.4. That is on
9 February 2006 Jetstar and the Jetstar Pilot Council advised the pilots and first officers about the ballot that was upcoming and that they had a minimum of 14 days to consider the variations and the Commission has, that letter is appendix B, and if I could take the Commission to appendix B.

PN74

THE COMMISSIONER: Yes.

PN75

MR PARRY: As the first paragraph indicates:

PN76

With the announcement that Jetstar will be taking steps to expand into long haul international operations ...(reads)... the arrangements for the introduction of wide body jet aircraft and long haul flying.

PN77

Now, Commissioner, there was an announcement that had been made on 8 December about the establishment of a new long haul value based airline under the Jetstar brand. That announcement had been made by Mr Jeff Dixon and he advised via a media release that Jetstar would comment its international operations no later than January 2007. Now, Commissioner, perhaps I could hand up a copy of that media release to the Commission.

EXHIBIT #QF1 MEDIA RELEASE

PN78

THE COMMISSIONER: Yes.

PN79

MR PARRY: Now, obviously it’s a fairly long announcement, Commissioner, but it does go through the work, the initial route structures and the point to point routes between Australia and Asia and Pacific cities and some of the plans over the future years. So the position of Jetstar has been no secret, at least for the last three months. Now, to return to appendix B the authors of this letter - and I do indicate the authors of the letter are Mr Alan Joyce, the CEO of Jetstar Airways, and Mr Rick Heaton, who is the president of Jetstar Pilots Council, Mr Heaton is also in the Commission today - that letter goes on and says that there are changes to the industrial instrument and advises of a vote and variations and it makes clear that, and I think it’s in the third paragraph from the bottom:

PN80

If you are a member of an organisation of employees union the organisation is entitled to represent your industrial interests in relation to work that will be the subject to the variation of the Jetstar Agreement. You may request the organisation represent you in meetings and confer with Jetstar of the variations.

PN81

It advises that the letter contains voter ID. Now, that letter was sent out and soon thereafter, as is referred to in the statutory declaration, employees received a variation package and the variation package is appendix C to the statutory declaration. The Commission will see from appendix C that the letter is again included in that document. There is a Jetstar Airways Wide Bodies Amendment document. Now, I think what the Commission has is a document that has the amendments marked in it and crossing out, but I don’t think the Commission has a coloured one.

PN82

THE COMMISSIONER: Yes.

PN83

MR PARRY: I have a copy of the original statutory declaration as sworn by
Mr Garnett and the original with the attachments, and the attachment includes a coloured inversion of the amendments. If I can provide that to the Commission. Does the Commission seek that that be tendered? I’m happy to tender it if that’s appropriate for the Commission’s records.

PN84

THE COMMISSIONER: Yes, okay.

EXHIBIT #QF2 ORIGINAL STATUTORY DECLARATION OF ROHAN WILLIAM GARNETT WITH ATTACHMENTS

PN85

MR PARRY: Now, the Commission will also note in that package is a guide to the changes. A three page document Guide To Changes From The Current EBA.

PN86

THE COMMISSIONER: Yes, I’ve got that.

PN87

MR PARRY: That runs through a summary of where matters are changed and where they are not changed. I think also attached in that bundle of documents is voting instructions for Jetstar pilots and the Commission will see a document which has a sample of an internet screen with the heading Elections Australia Pty Ltd. I’m hoping that’s attached to the statutory declaration.

PN88

THE COMMISSIONER: Yes. Yes, it is there.

PN89

MR PARRY: Now, Elections Australia Pty Ltd are being used by major airlines to conduct elections and they’re a reputable and well known body in that respect. This document is attached and it has fairly clear instructions for the conduct of a vote. Now, the voting process, and to return to the statutory declaration, the voting process was followed and the results of the vote are shown in appendix A and appendix A has a document from Elections Australia Pty Ltd showing the ballot of eligible employees and the particulars. And the Commission will note that the valid votes, some 73 per cent, were in favour of the variation and some 26 or so per cent have voted no out of the valid votes and the return was 220 valid votes out of 248 employees, which is a fairly high return of employees and a fairly overwhelming vote in favour of the agreement and of the variations thereto.

PN90

Now, to continue with the statutory declaration, and again I won’t read this to the Commission, but there were also road shows conducted as prescribed in paragraph 5.8 and the dates of those are there set out. The position with regard to the relevant award makes reference to the Pilots (General Aviation) Award. There is a dispute settling procedure clearly in the award. The deponent swears to the effect that there’s no reduction in overall terms and conditions and might we say on that, that it’s fairly clear that what is proposed is an improvement in the terms and conditions of the pilots. So there is a statutory declaration filed which goes through the requirements. To return to the rules, the rules also require in 53(1)(b)(iii):

PN91

If one or more organisations of employees are bound by the agreement statements signed by the employer and each organisation that they agree to the variation.

PN92

And I have that document and I tender to the Commission the statement as signed by the AFAP and Jetstar, the original thereof.

EXHIBIT #QF3 ORIGINAL STATEMENT BY AFAP AND JETSTAR

PN93

THE COMMISSIONER: Yes.

PN94

MR PARRY: So we would contend that the requirements of the rules and the documents so filed and their contents satisfy the requirements of rule 53. Now, to return to MD3 he Commission, as I’ve read out, needs to be satisfied that there is a valid majority of employees whose employment is subject to the agreement at the time and genuinely approved the variations. And we would submit that on the basis of the material in the statutory declaration and the process that has been followed that there is such a valid majority who so approve. The second part of MD3 is (b). The Commission will be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this part.

PN95

We would submit again on the basis of the statutory declaration that the requirements of section 170LK have been satisfied and accordingly that requirement has been met. In those circumstances we would submit that the requirements of the Act have been met and that the Commission we would seek the approval of the variation in the terms contained in the documents before the Commission. If the Commission pleases.

PN96

THE COMMISSIONER: Yes. Thank you, Mr Parry. Mr Pasfield?

PN97

MR PASFIELD: Yes, Commissioner. I confirm what is apparent from exhibit QF3 that the Federation agrees to the variation and accordingly it again supports the submissions that have been made by Mr Parry today.

PN98

THE COMMISSIONER: Yes, thank you. This is an application to vary the Jetstar Airways Pilots Agreement 2005. The parties to that variation are Jetstar and the Australian Federation of Airline Pilots. On the basis of what’s before me the Commission is satisfied the relevant requirements of the Act and the rules of the Commission have been complied with, in particular the provision of section 170MD have been complied with. Consequently the variations will be made. It will take effect from 8 March 2006 and will remain in force until some date in September 2009. What date in September 2009? I have it somewhere. Sorry,
28 September 2008. I think I’m right in that. The parent agreement having been certified on 28 September 2005. I think that’s right.

PN99

MR PARRY: 29 September 2005, Commissioner.

PN100

THE COMMISSIONER: Yes, but it expires on 28 September 2008, is that right? Anyway, a formal variation that accords with that decision will be made in due course. On that basis these proceedings are now adjourned.

PN101

MR MACKEN: Your Honour, might I just say housekeeping matters?

PN102

THE COMMISSIONER: Yes.

PN103

MR MACKEN: I handed up a letter dated 3 March 2006. Might it be marked for identification. I appreciate consistently with the ruling made in this matter it’s not an exhibit, but might it be MFI1?

PN104

THE COMMISSIONER: Yes.

PN105

MR MACKEN: And, sir, consistently with the direction given I haven’t, of course, presumed to address on what has been said by Mr Parry.

PN106

THE COMMISSIONER: Yes, I know.

PN107

MR MACKEN: I wouldn’t wish to be prejudiced by that.

PN108

THE COMMISSIONER: Yes. Thank you, Mr Macken. That document will be MFI1.

EXHIBIT #MFI1 LETTER FROM AIPA TO JEFF DIXON DATED 03/03/2006

PN109

THE COMMISSIONER: These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [11.23AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #QF1 MEDIA RELEASE PN77
EXHIBIT #QF2 ORIGINAL STATUTORY DECLARATION OF ROHAN WILLIAM GARNETT WITH ATTACHMENTS PN84
EXHIBIT #QF3 ORIGINAL STATEMENT BY AFAP AND JETSTAR PN92
EXHIBIT #MFI1 LETTER FROM AIPA TO JEFF DIXON DATED 03/03/2006 PN108