C2006/2117, Transcript of Proceedings [2006] AIRCTrans 586 (10 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14644-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2117

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
QANTAS AIRWAYS LIMITED
s.99 - Notification of an industrial dispute
(C2006/2117)

MELBOURNE

2.48PM, FRIDAY, 24 MARCH 2006

Hearing continuing

PN1

MR C HAAN: I appear on behalf of the ASU.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Haan. Mr Haan, there's no appearance for Qantas. My associate has been able to contact the industrial relations department there, who indicate that there's been some administrative bungle at their end, and the person who is handling the matter is on annual leave, sick leave or some sort of leave, on leave today, not here. So what do you want to do?

PN3

MR HAAN: Well, Commissioner, I'm not sure how - I've just got to accept that. Given that today is, my understanding is, that as of Monday the Commission will no longer have the power to conciliate under section 99, and therefore hear about this dispute which concerns Mr Smedley, his long service leave entitlements. We have written to Qantas twice, firstly in mid January, on 19 January, and then again in about mid February because they hadn't responded, asking for a response. We sent that to the head of industrial relations, Sue Bussell, and when we continued to not get a response to that we decided to issue it in the Commission.

PN4

Qantas has been, you know, administrative bungles aside, they should have an administrative system in place so they can attend these sort of conferences. As I said, I'm not sure of the process, but under section 300 of the Act as it stands, it says the person directed under subsection 119.1 to attend a conference, shall attend a conference, with a penalty of - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Well, that hasn't been done.

PN6

MR HAAN: What's that?

PN7

THE SENIOR DEPUTY PRESIDENT: That has not been done. There's been no section 119 order, has there?

PN8

MR HAAN: Correct me if I'm wrong, Commissioner, but my understanding was that when you list a matter under section 99 you are using your section 119 power.

PN9

THE SENIOR DEPUTY PRESIDENT: I don't think so. Qantas has indicated that it will respond to the union in writing next week. I don't know if that's much comfort to you. Since 119 deals with compulsory conferences, I haven't convened a compulsory conference. What do you seek?

PN10

MR HAAN: What we would seek in lieu of that is an undertaking by the company first that we receive a response.

PN11

THE SENIOR DEPUTY PRESIDENT: Well, you can't get that because they're not here. Is there anything that you seek from me that I can grant you?

PN12

MR HAAN: Apparently not, Commissioner.

PN13

THE SENIOR DEPUTY PRESIDENT: Because arguably this dispute is about the entitlement of a person to certain provisions of an award, is that right?

PN14

MR HAAN: It's under the award. The award refers to the Act, and under Qantas' policies which form part of the - state relief on behalf of contracted service.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. You're alleging some breach of the award are you? Is that what you're saying, that Qantas hasn't complied with the award?

PN16

MR HAAN: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, that's not a matter that I could make any final order in any event.

PN18

MR HAAN: We were essentially hoping to get Qantas here so we could find out their position on it and hopefully come to a resolution of it.

PN19

THE SENIOR DEPUTY PRESIDENT: I don't know that I can help you unfortunately.

PN20

MR HAAN: I again refer - section 119 seems to me to refer to when the Commission convened conferences - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Well, I haven't done that. All that's happened is that a listing has been made. Section 119 doesn't apply, I so rule, don't argue with me.

PN22

MR HAAN: Okay.

PN23

THE SENIOR DEPUTY PRESIDENT: I think what I have to look for is regulation 4.20 in - - -

PN24

MR HAAN: Well, Commissioner, could you issue something under section 119 now?

PN25

THE SENIOR DEPUTY PRESIDENT: I don't think so because I think everything will lapse as of Monday. That's the difficulty. It's a very convenient administrative bungle on behalf of Qantas. I don't put it any differently than that. Regulation 4.2.0 is the regulations that come into force on Monday. It states in subregulation 1:

PN26

Subject to subregulation 2, if an alleged industrial dispute was notified under section 99 of the previous format before the reform commencement, but the matter was not finally determined before the reform commencement, proceedings in relation to the matter lapse, to the extent that that matter relates to an employer on the reform commencement.

PN27

Qantas is an employer as defined, it's a constitutional corporation. Subsection 2 may save you:

PN28

If immediately before the reform commencement the Commission was dealing under section 102 or 103 -

PN29

But not, I fear. Well, maybe I am. This section 99 notification that's been referred to me, I will refer it to myself under section - I will refer this section 99 notification of an alleged industrial dispute for conciliation by myself pursuant to section 100 of the Workplace Relations Act 1996 as it exists at the present time, and I do so now. Accordingly, I will deal with this matter by conciliation pursuant to section 102 as soon as Qantas becomes available, and that process has in fact commenced today because Qantas has indicated that it is prepared to reply to the union in writing.

PN30

Accordingly, as of Monday the matter will not have been finally determined, but as that time the Commission will have been dealing with the matter under section 102, and it clearly relates to the application of the - or it appears to relate to the application of the Airline Officers (Qantas Airways Limited) Award 2000. Therefore I should be able, it seems, to deal with that matter under section 701 of the Act as it will be from Monday.

PN31

Aren't we going to have fun with this new legislation? Section 701 deals with the Commission's powers under the alternative dispute resolution process under the model dispute resolution process, and I may arrange conferences of the parties, and so on. What I'll do is I will adjourn this matter for further conciliation until what date, Mr Haas? We'll go off the record and find a date, Mr Haan.

<OFF THE RECORD

PN32

THE SENIOR DEPUTY PRESIDENT: This matter will be adjourned as I indicated, until 10.15 am on Friday, 28 April 2006. Thank you.

<ADJOURNED UNTIL FRIDAY 28 APRIL 2006 [3.01PM]