AG2006/3951, Transcript of Proceedings [2006] AIRCTrans 629 (12 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14782-1

DEPUTY PRESIDENT HAMPTON

AG2006/3951

APPLICATION BY LLOYD HELICOPTERS PTY LTD & AUSTRALIAN FEDERATION OF AIR PILOTS-VICTORIAN BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/3951)

ADELAIDE

4.42PM, WEDNESDAY, 05 APRIL 2006

PN1

MR S BAKEWELL: I seek leave to appear as agent - perhaps I don’t need to seek leave today, but nevertheless I’ll go through the formalities - on behalf of CHC Helicopters. Appearing with me today is MS M BRAMBILLA, human resource manager.

PN2

THE DEPUTY PRESIDENT: Very well, thank you, Mr Bakewell. Perhaps I should indicate for the record that Mr Cox has been in contact with my office. As indicated, as would be obvious, his support for the certification of the agreement would indicate an apology but also intend that he would propose to rely on the statutory declaration which he’s already filed in the matter and I have indicated that I will deal with it on that basis. If matters arise that I believe he should have an opportunity to put submissions on then he will be given that opportunity. Mr Bakewell.

PN3

MR BAKEWELL: Thank you, Deputy President. This of course is an application under the old section 170LJ of the Workplace Relations Act for certification of the CHC Pilots Agreement. The employees, the pilots, were represented by Mr Cox of the AFAP through proceedings and indeed I think the Deputy President himself was involved in conciliating the last part of negotiations for this agreement. A genuine and informed consent was given by the majority of employees following a full explanation of the terms of the agreement from both pilot representatives and the company.

PN4

The company submits that the agreement does comply with all of the requirements for certification contained within the Act and as set out in the statutory declarations that you have alluded to that you have received, certainly from the AFAP, and from the company. Just on that point, as a procedural matter, I think you might find that the agreement that you have on file would have either a faxed or a photocopied signatory of the AFAP on the actual document itself and you probably have a photocopy of the declaration of the AFAP.

PN5

THE DEPUTY PRESIDENT: Yes, correct on both counts.

PN6

MR BAKEWELL: Yes. I actually have originals here today to hand up for the record, albeit that the signing page of the AFAP doesn’t have the original signing page of the company so the two combined.

PN7

THE DEPUTY PRESIDENT: I understand. It’s the tyranny of distance.

PN8

MR BAKEWELL: The tyranny of distance indeed. The parent award is the Helicopter Pilots General Aviation Award 1999 and the agreement replaces the award in total. The agreement is intended to run until 1 May 2008. It is our submission, subject to any questions you may have, that the agreement does not contain any matters that do not pertain to the relationship of employer and employee.

PN9

The parties, following discussions with Mr Cox, we also seek to table a statement which indeed we filed with the agreement at the time of lodgement. The purpose of this document was simply to provide a record of the agreed interpretation of two issues. One was a clarification of work practice 4 in regard to standby and duty time, and secondly the deletion of a statement within the explanatory notes on split duty. These were just matters that the parties had discussed as being instructive as to how certain clauses were to be interpreted. I believe this document which I’ll hand up now to help you identify it on the file.

PN10

THE COMMISSIONER: Perhaps if you could.

PN11

MR BAKEWELL: And if in fact, for whatever reason, it wasn’t on the file we would probably suggest that Mr Cox be given the opportunity to confirm his agreement with that document which was put out jointly.

PN12

THE DEPUTY PRESIDENT: It’s not immediately evident on file. It’s certainly not with the original documents which were tendered with the application. So in that context - and I appreciate the suggestion you’ve made, what I propose to do is to mark as an exhibit document headed "Statement for the Commission". I’ll admit that.

EXHIBIT #A1 DOCUMENT HEADED STATEMENT FOR THE COMMISSION

PN13

THE DEPUTY PRESIDENT: I will do as you suggest. I will have my office provide a copy of that to Mr Cox and get Mr Cox just to confirm the contents of that statement, in consideration of his position. I have every confidence that that is the case but I think that is the best course of action.

PN14

MR BAKEWELL: I understand. The main changes to the agreement are clause 20.10 included a reference to what we call category regression which is a voluntary decision made by a pilot to regress to a lower rank position. Effectively it overcomes a problem that the company has where as pilots age unfortunately their ability to take a command position decreases and this gives them an opportunity to have gainful and ongoing employment with the company. Clause 23.1 dealing with allowances, which states that:

PN15

If any allowance payable under the clause is paid at a particular location to another group of CHC employees engaged under another certified agreement at a higher rate, that CHC commit to paying that higher rate to pilots at the same location.

PN16

New allowances have been included in this agreement being offshore accommodation allowance, clause 23.4, or they call it buffer allowance, which is clause 23.8, and an aviation medical reimbursement which provision which provides for medical reimbursement cover ever 12-month period where pilots are engaged on overseas contracts.

PN17

Clause 31.5, duty away from home base, clarifies a pilot’s entitlement if they are required to be on duty at a base other than their home base. And finally, clause 32.7 outlines the provisions relating to the granting and the deferral of annual leave. They effectively are my submissions save for one issue, which of course is the ability of the Commission to deal with this matter and this is my first attempt at this so please bear with me, Deputy President.

PN18

THE DEPUTY PRESIDENT: I understand completely.

PN19

MR BAKEWELL: As I understand it schedule 14 of the new Act deals with the transitional arrangements for existing - what are now effectively - well, for existing federal agreements and it details that Part VIII applies where an application is made for certification before the reform commencement, and specifically clause 31(1) refers to applications for certification made under section 170LM of pre-reform Act and clause 31(2) states:

PN20

The pre-reform Act continues to apply despite the repeals and amendments made by the Workplace Relations Amendments (Work Choices) Act 2005 in relation to the application and certification of agreements.

PN21

And it was seen therefore on that basis that the Commission indeed has the power to certify this matter under the old Act, as it were, given that this application was filed before the amendments took place. They are my submissions.

PN22

THE DEPUTY PRESIDENT: Thank you, Mr Bakewell. I’ll deal with the application now, I do so for a number of reasons. Firstly I have had an opportunity to read the statutory declarations and the proposed agreement. Secondly, you have addressed me in relation to what might be described a jurisdictional issue as to the Commission’s power to deal with the application. Thirdly, I have of course had some dealings with the affairs of the parties and I have at least a general understanding of the context in which the agreement was negotiated and in which its certification is sought. I propose to deal with the application on the basis that I will subsequently confirm or have Mr Cox confirm that exhibit A1 represents a common position and I have every confidence that that will be the case.

PN23

Firstly, as to the Commission’s jurisdiction to deal with the matter, I accept the submissions you advance, Mr Bakewell. This is what might be described as a pre-reform application and I accept the import of the Workplace Relations Act 1996, as amended, is that the Commission is to deal with this application under the law as it stood prior to 27 March of this year and in that context the application is appropriately before the Commission and the Commission has the jurisdiction to deal with it.

PN24

Secondly, I consider that the terms of the agreement relate to the requisite relationship and I accept the submission that has been made that there are no provisions which do not pertain. I also accept that a valid majority of employees have endorsed the proposed agreement and the application being made to this Commission following a process which met all legislative requirements. Further, I am satisfied that the agreement meets the no-disadvantage test of the Act. Further, I am satisfied that all statutory requirements for certification of an agreement in this jurisdiction have been met.

PN25

For those reasons the Commission does hereby certify this agreement pursuant to the Workplace Relations Act 1996. The agreement will come into force on and from today’s date and will have a nominal life extending until 1 January 2008. I will sign and append the certification order, supply the now endorsed instrument and that order to the relevant parties for your own use and records.

PN26

Lastly, I do note for reasons that you have alluded to, Mr Bakewell, that this is the final agreement that will come to this Commission. In that context I should make two comments: firstly, in my view it reflects very well on both management and the federation that you ensured that your affairs were sorted out in time for the agreement to be certified. I think in what will no doubt be a period of some uncertainty the continuation of your collective affairs through the certification of this agreement will stand the parties in good stead. Lastly, wish the parties all the best in that context. I do note a continuing role for the Commission, in a dispute resolution role, and indeed a matter next week which will involve that process. The Commission is adjourned.

<ADJOURNED ACCORDINGLY [4.54PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DOCUMENT HEADED STATEMENT FOR THE COMMISSION PN12