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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15153-1
DEPUTY PRESIDENT HAMPTON
C2006/6
TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
QANTAS AIRWAYS LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/6)
ADELAIDE
9.40AM, THURSDAY, 01 JUNE 2006
Reserved for Decision
PN1
MS A RICHARDS: I appear on behalf of the Transport Workers' Union of Australia, with me is MR P MCINTOSH representing the South Australia/Northern Territory branch.
PN2
MR P SMITH: I appear for Qantas Airways Limited.
PN3
THE DEPUTY PRESIDENT: Yes, Ms Richards?
PN4
MS RICHARDS: Thank you, your Honour. Perhaps if I can just deal with a few issues of housekeeping first in terms of how the parties would foresee this matter proceeding today.
PN5
THE DEPUTY PRESIDENT: Yes.
PN6
MS RICHARDS: To summarise, this is an application by the Transport Workers' Union for the conversion of permanent part time employee, Qantas, their position, to be converted into full time in accordance with clause 18.5.2 of the Qantas TWU EBA6. I've had discussions with Mr Smith and if you will recall, your Honour, initially the TWU was seeking to, in effect, get a decision or putting forward a draft order which would effectively result in the interpretation of the clause. After discussions with Mr Smith the TWU conceded and agreed that we put up a particular factual situation for one employee and seek to get a determination on that basis.
PN7
THE DEPUTY PRESIDENT: I must say I think it's entirely sensible, the course of action that you've adopted.
PN8
MS RICHARDS: Certainly, your Honour. We had originally put up Mr Andrew Bates and you will see that reflected in our additional submissions and the additional attachments which we've served and filed. It was brought to my attention yesterday and it's probably an oversight on the part of the TWU that the date on which the potential conversion of Mr Bates' position would occur would actually occur under EBA5 as opposed to EBA6.
PN9
So if you'll accept my indulgence, what the TWU would be proposing to do would be to substitute Mr Bates' factual situation for another employee so that we could actually get a determination based on an entitlement which arises under EBA6.
PN10
THE DEPUTY PRESIDENT: That doesn't cause you any drama, does it, Mr Smith?
PN11
MR SMITH: No, thank you, your Honour. In fact it was a point that we raised with the TWU. We were also concerned about whether or not there would have been a private arbitration power still alive under EBA5 and rather than having that technical debate - - -
PN12
THE DEPUTY PRESIDENT: Yes, very murky territory from previous experience.
PN13
MR SMITH: Yes. We thought it might be easier and for practical purposes we've moved to a scenario that triggers under TWU EBA6.
PN14
THE DEPUTY PRESIDENT: Very well.
PN15
MS RICHARDS: Thank you. Your Honour, so in substitution, if I can just draw you to the TWUs bundle of documents that have been served. Perhaps might we have that marked as an exhibit first, just for - - -
PN16
THE DEPUTY PRESIDENT: The entire bundle?
PN17
MS RICHARDS: The entire bundle. Perhaps if we mark the entire bundle.
PN18
THE DEPUTY PRESIDENT: Any objection to that course of action, Mr Smith?
PN19
MR SMITH: No, your Honour. I note that the bundle is tabbed and marked so we should be able to find our way around it.
PN20
THE DEPUTY PRESIDENT: All right, and that would include, for convenience, both the original and the additional submissions?
PN21
MS RICHARDS: That's what we would be proposing, your Honour.
MR SMITH: Yes, your Honour.
EXHIBIT #TWU1 BUNDLE OF DOCUMENTS
PN23
MS RICHARDS: If I could then take you to exhibit TWU1 attachment 1.
PN24
THE DEPUTY PRESIDENT: Yes.
PN25
MS RICHARDS: What has been filed and served here is a summary of six employees which we discussed in our conciliation conference. It was agreed that there would be a sample of is employees and that that information would be provided from the company so we could assess whether a particular entitlement would arrive. The TWU would be proposing to substitute Mr Bates' factual situation for Mr Hutchison, he's the third employee down, so we would be proposing to, in terms of the hearing today, deal with his factual situation.
PN26
THE DEPUTY PRESIDENT: Just in relation to that, in the supplementary submissions - - -
PN27
MS RICHARDS: Certainly. What we would propose to do would be to put up Mr Hutchison's situation as a test case scenario to obtain a determination from yourself about what hours are included. What the parties intend to do after we receive a determination on those grounds is that it has been agreed that the parties will go back and then assess all permanent part time employees based on and the determination that the Commission will give to us as to how many conversions would be triggered.
PN28
Then the additional issue is Qantas has led submissions in relation to the operational aspects of the port and obviously they'd be submitting that any proposed conversions or the number of conversions would have to be taken into consideration in determining how many, based on the operational aspects of the port. So the parties have had further discussions about what we'd proceed to do today is just to deal with the issue about what hours are in, effectively, and what hours are not, and in terms of dealing with any issues about how many conversions should have been provided, that we proceed - in any event, the parties could not bring on that, that we'd bring the matter back on and get a determination from yourself on that basis if that's acceptable to your Honour.
PN29
THE DEPUTY PRESIDENT: Yes, again, I think that's a very pragmatic and constructive way to advance your dispute.
PN30
MS RICHARDS: Thank you. So effectively the only issue in dispute really, to summarise, is the current issue about whether the average permanent part time hours on the roster whilst working in full time relief employment count. So that's the main issue that we seek a determination from yourself on. I don't have any further opening submissions, your Honour. Perhaps we could hand it over to Mr Smith initially, but in terms of housekeeping, what we'd propose to do or what I'd seek to request is that after Mr Smith has made his opening submissions if we could perhaps have a short break for 10 minutes before we deal with our first witness.
PN31
THE DEPUTY PRESIDENT: All right. Just in relation to Mr Hutchison, in terms of the hours that fit into the respective categories, bearing in mind that Roman (iv) has now been removed, the actual rostered hours whilst in permanent part time employment, that's drawn, I take it, from attachment 1?
PN32
MS RICHARDS: That is. What I would be proposing to do in the short break, Commissioner, is actually tally up these numbers so I can actually work out for you, what are the permutations that you could make a decision about.
PN33
THE DEPUTY PRESIDENT: Do I take it that what that's going to reveal is that with the inclusion of the disputed hours, that will put him over the category, with the exclusion of the hours he's below the category?
PN34
MS RICHARDS: Yes, that's correct.
PN35
THE DEPUTY PRESIDENT: All right. You've picked a good example. Very well, Mr Smith?
PN36
MR SMITH: Thank you, your Honour. The TWU has clarified the amended order that it's now seeking and has made a number of submissions about how the parties propose to approach today which we're in agreement with, and your Honour's indication that you're comfortable with the suggested approach, it means of course that we focus on the issue of the calculation of hours for this individual, Glenn Hutchison and in particular the one disputed item, which is paragraph 1(b)(iii) of the further amended draft order prepared by the TWU.
PN37
Now, your Honour, in the process of preparing for this case, the parties have necessarily gone through quite a detailed forensic exercise and we've turned up some additional materials as we've progressed through it. I want to introduce your Honour to at least one document, but before I do that I might just make a couple of quick comments about the draft order. In paragraph 1(a), the second sentence currently reads, commence the quote:
PN38
He worked more than 15 60 hours in his first year of service so his position converts to full time.
PN39
I think that language relates to Mr Bates and we would need a further amendment there because, as I understand it, Mr Hutchison joined the business on 23 December 2001, so he's not in his first year of service and consequently the aggregate cap of hours is a different number. So the number 15 60 should be amended to read 14 10 and we need to delete the word "first" and perhaps have in his year of service ending 23 December 2005.
PN40
THE DEPUTY PRESIDENT: Yes. So that's acceptable to you, Ms Richards?
PN41
MS RICHARDS: That is correct, thank you.
PN42
THE DEPUTY PRESIDENT: Very well. I take it though that the figures which are going to produce will still have the effect that you confirmed earlier in relation to the lower count?
PN43
MS RICHARDS: Yes, that 14 10 is less than 15 60, your Honour, so that the benchmark to jump over is not actually as high.
PN44
THE DEPUTY PRESIDENT: No, but still produces the result that you're after?
PN45
MS RICHARDS: Yes.
PN46
THE DEPUTY PRESIDENT: All right.
PN47
MR SMITH: The only other comment I'd make about the further amended TWU order, your Honour, is in paragraph 1(b)(ii) that currently reads, I commence the quote:
PN48
Overtime whilst in permanent part time employment (including shift extensions and call ins.)
PN49
Had some discussions with the TWU. We understand that to be a reference to those hours worked by a part time employee whilst occupying a part time line. That is, not engaged in relief employment, not engaged in covering absent full time employees.
PN50
Now, that's, as I understand it, the agreed approach to 1(b)(ii) and that's what the company is consenting to. Now, your Honour, I've mentioned that there's been quite a detailed forensic exercise and whilst the parties have been successful as a result of having discussions about narrowing the areas of dispute, it means of course that some of the parameters have changed given the materials that we've already filed and including the written submissions.
PN51
One important document which we would be seeking to take the Commission to, and really forms the heart of our argument today in the Commission, is a local agreement between Qantas and the TWU. It's a facilitative agreement that was made pursuant to the Transport Workers' Union Qantas Airways Limited Enterprise Agreement 4 which, for today's purposes, we'll refer to as TWU EBA4. The document is signed by the South Australian/Northern Territory branch secretary, then the federal secretary of the TWU and the TWU delegate. The agreement was signed in February 2000 and it deals with part time employment and the approach to be taken to the calculation of hours for the purposes of assessing whether a permanent part time position converts to full time.
PN52
It wasn't previously a document that the parties had before them in earlier discussions, including conciliation proceedings before the Commission and it wasn't a document that we had before us at the time of filing submissions, statements and materials in accordance with the Commission's directions in preparation for today's hearing, but we've since made a copy available to the TWU and I'd seek to provide a copy to the Commission now.
PN53
THE DEPUTY PRESIDENT: Mr Smith, is it your contention that this is the agreement that was referred to in the Minard & Frittum unfair dismissal matters?
PN54
MR SMITH: Yes, it is, your Honour.
PN55
THE DEPUTY PRESIDENT: Just as a matter of interest do you know whether that was provided to SDP Drake or whether it was before the full Commission?
PN56
MR SMITH: Look, it's a point which we sought to chase down and we've spent some time going through the Commission records and, indeed, the appeal books and the records on the appeal file. My best understanding, and I know that Amy has similarly gone through this exercise as well, it appears that what's occurred is that this agreement on the face of one of the statements was purportedly annexed to one of the company's witness statements. There's an exchange between the company advocate and SDP Drake saying, I can't find this particular attachment.
PN57
The company advocate says, we'll provide it in due course. When we go through the file before Drake and the file before the Full Bench there's no copy of the agreement on the Commission file which is a number of hours of frustrating and wasted effort for a number of company officers and people in the TWU, because it is quite voluminous material, but it wasn't there.
PN58
THE DEPUTY PRESIDENT: As I understand the true decisions, it ultimately wasn't important to the way the matter was determined.
PN59
MR SMITH: No, it wasn't because - and we'll talk about this later in more detail, but the Frittum & Minard decision turned on a different point. Those employees in that case characterised what happened to them as a termination of employment, so they sought to assert that because their hours, as they had it, exceeded the cap, having worked and extended a period of time that the proposal, the action of the company in having them returned to part time hours amounted in effect to a termination of employment and that was the issue before the court as opposed to how the hours should be calculated and they're claims that ultimately failed on that point, that it's the position that converts, not the individual.
PN60
THE DEPUTY PRESIDENT: Mr Smith, are you seeking this being admitted?
PN61
MR SMITH: Yes, I am, your Honour.
PN62
THE DEPUTY PRESIDENT: Ms Richards?
PN63
MS RICHARDS: This document was provided to the TWU the day before yesterday, your Honour, and we have no objection to this matter being tendered by the company. This document effectively is going to form the basis of the dispute and the submissions that we made today about whether it's relevant or not.
PN64
THE DEPUTY PRESIDENT: Very well. Then the agreement which I think is dated 22nd, 21st, I don't think it particularly matters, 21st probably, that's what it looks like.
PN65
MS RICHARDS: Perhaps, your Honour, I just noticed that the document has actually been signed 28th of the second 2000 and the 21st of the second 2000. I think it's been an error, that 1999 on the top of the first page has actually been - - -
THE DEPUTY PRESIDENT: I see. Yes, it might have been in draft form for some time, I suspect.
EXHIBIT #QF1 2000 AGREEMENT BETWEEN QANTAS AND TWU SOUTH AUSTRALIA/NORTHERN TERRITORY BRANCH
PN67
MR SMITH: Your Honour, and I will go into some detail in working through the 2000 local agreement marked QF1 today, but for the purposes of my opening I would indicate that paragraphs 1, 2 and 3 are particularly on point and that read together it makes it clear that hours worked by a part time employee covering full time employees who are on long term Workers' Compensation, long term sick leave or long service leave do not count for the purposes of the conversation cap and that, as we would have it, would override by facilitative agreement of the parties any provision to the contrary in TWU EBA6.
PN68
THE DEPUTY PRESIDENT: Mr Smith, you don't need to deal with it now, but I presume in the course of your submissions you will deal with the basis upon which you say it's relevant under EBA6, given that it presumably was a facilitative agreement made under an earlier agreement?
PN69
MR SMITH: Yes. Your Honour, perhaps the only other submission I'd seek to make in opening was, given that the narrow compass of the matters in dispute before you today, it is proposed by the TWU to lead some evidence. Not all that evidence which would be led or in the witness statements would be relevant to the particular issue before you today. So I was wondering whether to, you know, in the efficient conduct of the proceedings today, if it could be understood that any cross-examination would be confined to matters perhaps relevant to the issue in dispute today with an understanding that if necessary the parties had to re-activate the claim to go to the second stage, that it might then be necessary to have those witnesses back and cross-examine them in relation to the matters relevant to the second stage of any further proceedings.
PN70
THE DEPUTY PRESIDENT: It's rather a concession, because you've not cross-examined, it doesn't mean that you accept.
PN71
MR SMITH: Yes, that's what I would be proposing.
PN72
THE DEPUTY PRESIDENT: Ms Richards, that sounds like a reasonable course of action.
PN73
MS RICHARDS: The TWU accepts that proposal.
PN74
MR SMITH: Thank you, your Honour, and of course that would cut both ways to the extent that the company's witnesses' evidence is relevant.
PN75
THE DEPUTY PRESIDENT: Very well.
PN76
MR SMITH: I think the TWU were seeking now a short break to do some arithmetic if it's acceptable to the Commission.
PN77
THE DEPUTY PRESIDENT: Indeed. Thank you, Mr Smith. Ms Richards, I think the one point of clarification was made that if in relation to - in terms of the amended draft order 1(b)(ii), Mr Smith put some qualification on the understanding of the fact that that related to work when the employee concerned was in the part time time line rather than in a full time line or relieving capacity, do you accept that that's the case?
PN78
MS RICHARDS: In some respects, yes, Commissioner. The TWU would submit that in drafting this and our assertion of what that particular Roman numeral would mean, that would cover any overtime work by a permanent part time employee while they were working in a permanent part time line. There's an issue about - and we'll get to this further in the hearing today - but there's an issue about permanent part time employees being used to relieve for work which is not specifically provided for in the EBA.
PN79
For example, the EBA provides the ability t act up in temporary relief employment to cover long term Workers' Comp, sick leave and - I'm trying to think of the other one off the top of my head - long term Workers' Comp, long term sick leave or long service leave. So the TWU would see any hours where an employee is working up to cover things other than what is specifically covered under the definition or relied full time employment to be counted. So I suppose what effectively we're saying is that in terms of point 1(b)(iii), when an employee is working up in full time relief employment, then they're only able to work up in certain situations, certain circumstances for that and those hours, we need a determination on that, but any hours where an employee is working up just to cover vacant full time work, they're not actually triggered to work into temporary relief and for relief full time employment, hence they're still a part time employee. So their overtime would count if that - perhaps if I can re-state myself.
PN80
EBA6 provides an ability for permanent part time employees to work up in temporary relief full time employment, so effectively they're not considered a permanent part time employee for that point of time. They're considered a temporary relief employee. They're only able to do that in certain situations. So what we would be saying is that if the company had used permanent part time employees to undertake full time work which is not within the scope of relief full time employment, that they are substantively still a permanent part time employee and hence their actual rostered hours and their overtime would come under points 1(b)(i) and (ii). That would be our submission.
PN81
THE DEPUTY PRESIDENT: Mr Smith, do you have a position on that?
PN82
MR SMITH: Look, your Honour, we've spent much time with the TWU discussing this and I think we're in agreement. What I was trying to guard against with paragraph 1(b)(ii) was just this use of language of whilst in permanent part time employment, because as we would have it, those employees are always in permanent part time employment, even when they're occupying a full time relief line. They're in permanent part time employment.
PN83
If the hours triggered - it's the position that triggers, not the individual, not the employment. So all I was wanting to clarify with the TWU and perhaps in the short break we might decide that it's some finessing of the language in Roman numeral (ii) will assist, but all we want to make clear is that 1(b)(ii) is talking about where part time employees are not engaged in relief employment or covering for absent full time employees, that those hours don't count.
PN84
THE DEPUTY PRESIDENT: All right.
PN85
MS RICHARDS: Perhaps, Commissioner, if we can draw you to a clause in EBA6 which might clarify the situation. If you look at -
I'm not quite sure
what - that's attachment 4 in TWU1, if you go to clause. 18.6.1, it provides for a permanent part time employee actually to be
transferred to full time relief employment, but that the employee would return to their part time role, so I would say that would
mean their part time employment, at the conclusion of their relief work.
PN86
So I think the parties are in agreement that the hours, the overtime hours when a permanent part time employee is working as a permanent part timer count, any overtime hours and the issue of, I suppose, actually - sorry, I'll just retract that. But I think effectively that's what we're trying to get at. It's just the terms of it. It's quite a complicated argument and I think we're in agreement and perhaps maybe within the break we can re-draft point (ii).
PN87
THE DEPUTY PRESIDENT: Yes, I think that's a useful suggestion.
PN88
MS RICHARDS: And then we can proceed from there on.
PN89
THE DEPUTY PRESIDENT: It does sound like you are in heated agreement, but because obviously the object here is to isolate the points of difference and make sure there is an actual agreement in relation to the earlier points, I think it is a useful investment just to see whether the words can be finessed to reflect that. So in that context, how long should the adjournment be?
PN90
MS RICHARDS: Well, 15 minutes or so, your Honour. We just need time to re-finesse that point and if I can seek your indulgence I'll attempt to do some calculations with Mr Hutchison so we can hand up what factual figures we're dealing with.
PN91
THE DEPUTY PRESIDENT: All right. Perhaps then, say, 25 minutes to?
PN92
MS RICHARDS: Perhaps to err on the side of caution, 25 to.
PN93
THE DEPUTY PRESIDENT: All right. We'll adjourn on that basis.
<SHORT ADJOURNMENT [10.15AM]
<RESUMED [10.54AM]
PN94
THE DEPUTY PRESIDENT: Yes, Ms Richards?
PN95
MS RICHARDS: I think Mr Smith is going to deal with the issue of the amended draft order. The parties in conference have been able to agree on some proposed working, your Honour.
PN96
THE DEPUTY PRESIDENT: Very well, good. Yes?
PN97
MR SMITH: Thank you, your Honour. The proposal in relation to the further amended TWU draft order is to amend in paragraph 1(b)(ii) so that it would read as follows, commence the quote:
PN98
Overtime whilst in permanent part time role (including shift extensions and call ins) whilst not working in full time relief employment.
PN99
And I end the quote there. Now, I think just by way of explanation I think your Honour will find as we move through submissions that in interpreting and applying that clause the company will place weight on the local agreement marked QF1 to breathe life into the language of relief employment.
PN100
The TWU, for its part, will turn to the Transport Workers' Union Enterprise Agreement 6. So we were unable to finesse the wording further given that difference.
PN101
THE DEPUTY PRESIDENT: Good, thank you.
PN102
MS RICHARDS: If that assists, thank you.
PN103
THE DEPUTY PRESIDENT: Perhaps in that context, Ms Richards, you might create a consolidated version of that and supply that both to Mr Smith and to my office.
PN104
MS RICHARDS: Certainly, we can do that. I realise there are substantial amendments to that and we apologise, your Honour.
PN105
THE DEPUTY PRESIDENT: No, that's fine. Look, I must say I think the process that's led in effect to an agreed refinement is a very constructive one. Yes?
MS RICHARDS: Your Honour, we'd like to call our first witness, Mr Craig Moir.
<CRAIG MOIR, AFFIRMED [10.57AM]
<EXAMINATION-IN-CHIEF BY MS RICHARDS
PN107
THE WITNESS: My name is Craig Moir. My address is (address supplied), occupation, Airline Services Operator for Qantas Airways, Adelaide Ramp and an elected TWU delegate.
PN108
MS RICHARDS: Your Honour, if I can just hand up a witness statement to Mr Moir. Mr Moir, have you had a chance to read over your statement?---Yes, I have.
PN109
Are there any corrections which you would like to make to that statement?---No, there's not.
PN110
Is your statement factually true and correct in every particular?---As far as I know, yes.
PN111
We'd seek to tender the witness statement, that's the signed copy.
PN112
THE DEPUTY PRESIDENT: Yes, all right.
PN113
MS RICHARDS: We have no questions for this witness in examination-in-chief.
PN114
THE DEPUTY PRESIDENT: Perhaps in that context, Ms Richards, rather than admit it as a separate exhibit number, perhaps I'll merely replace it in attachment 1 of TWU1.
PN115
MS RICHARDS: Certainly, that would be sufficient, your Honour.
PN116
THE DEPUTY PRESIDENT: Very well, good, thank you.
PN117
MS RICHARDS: Attachment 11.
THE DEPUTY PRESIDENT: Yes, attachment 11, quite so. Mr Smith?
<CROSS-EXAMINATION BY MR SMITH [10.58AM]
PN119
MR SMITH: I've only got a few quick questions for you. Craig, in your statement you say you commenced employment with Qantas on
16 August 1999?---That's correct.
PN120
At that time you commenced in a part time role?---That's correct.
**** CRAIG MOIR XXN MR SMITH
PN121
You progressed to a full time role on 19 June 2002?---That's correct.
PN122
So during the period from your commencement until 19 June 2002 you were looking to obtain full time employment with Qantas?---Yes, I was, yes.
PN123
So you followed with some interest, did you, the approach the company took to appointing full time employment?---I was pretty new to the company but, yes, I did.
PN124
In paragraph 4 of your statement you say:
PN125
I was never required to fill in any paperwork in relation to working full time and was never told who I was relieving or why.
PN126
Can you see that paragraph?---Yes, I can see that, yes.
PN127
So it's true to say that when you were working full time you didn't know who you were covering, did you?---No, I didn't.
PN128
At paragraph 10 of your statement you say that you weren't aware of any local agreements between Qantas, the employees or the TWU?---That's correct, yes. To the best of my knowledge, anyway.
PN129
Your Honour, I'd like to show the witness QF1. Now, Craig, at the time of making your statement you weren't aware of this agreement?---I wasn't aware of it at the time. This agreement, the first time I seen it today, was mentioned to me this morning. It - when Ansett collapsed, because that's what the agreement is about, there was - work was - sorry.
PN130
Sorry. No, sorry, if I can take you to QF1, if you'd just take time to look at
it?---Sorry, yes, yes.
PN131
This relates to the approach to the calculation of hours, I think you'll
find?---Okay, this agreement, I've never seen before, no, and I wasn't aware of it.
PN132
In your statement at paragraph 10 you say you're not aware of any circumstance where overtime is excluded from the calculation of hours for the purpose of conversions, that's what you say in 10, isn't it?---That's right.
PN133
Now, you've since had time to read the agreement marked QF1?---I've had a quick look over it this morning. I haven't had an in depth read of it.
**** CRAIG MOIR XXN MR SMITH
PN134
You would agree with me, would you not, that reading paragraphs 1, 2 and 3 together, that it's clear that there's an agreed arrangement, that hours worked by a part time employee covering the matters set out in paragraph 3, that is, full time employees who are on long term Workers' Compensation, long term sick leave or long service leave do not count for the purposes of the hours cap, that's the effect of this agreement, isn't it?---Sure, that's - I'd have to agree with that. That's what this document says, yes.
PN135
Yes, and that agreement is signed February 2000, it's got a couple of dates on it, but, yes, in February 2000?---Yes, February 2000.
PN136
And it's signed by a TWU delegate, although I think I'm right in saying, you weren't a TWU delegate at the time this was negotiated?---No. I wasn't involved in this at all then.
PN137
Now, in paragraph 12 of your statement you refer to the collapse of Ansett?
---Yes.
PN138
Now, I think that was around September 2001?---That's correct, yes.
PN139
And at that time it's fair to say that there was a large influx of work previously performed by Ansett that came across to Qantas?---Yes, I agree, yes, totally. Our world was turned upside down.
PN140
In your statement you indicate that you were not aware of any local agreement that dealt with the part time hours at that time?---I wasn't - I didn't recall it when I made this statement but this morning I was given an agreement, I suppose you'd call it, but it was - I never saw an agreement and I understood it to be just short term until the business was sorted out and they got a grip on it and then all the permanent part time issues would be addressed.
PN141
May I show the witness a document, your Honour, which I'll also seek to tender. Now, Craig, I've shown you an agreement. It's dated
on the first page
3 December 2001, can you see that?---Yes.
PN142
And the agreement is signed by the South Australia/Northern Territory Branch Secretary of the TWU and also a TWU delegate?---Yes.
PN143
Which again wasn't you, you weren't a delegate at this time?---No, that's correct.
**** CRAIG MOIR XXN MR SMITH
PN144
Now, you'd agree that this is a facilitative agreement made pursuant to the Transport Workers' Union Qantas Airways Enterprise Agreement 4?---I would agree, I suppose, yes, yes.
PN145
And in paragraph (a) you'll see that the agreement has a limited life, that is, that the agreement commences on 3 December 2001 and continued in force until 31 December 2001, do you see that?---Yes, I can see that.
PN146
Now, you've had a chance to read this agreement in the morning, this morning?
---Only just 10 minutes ago I had a look at it.
PN147
Would you agree with me that this agreement is an attempt to deal with the calculation of part time hours for the purposes of conversion, potential conversion of permanent part time positions to full time in light of the influx of hours from Ansett?---It was to deal with the Ansett problem at the time, yes.
PN148
THE DEPUTY PRESIDENT: Ms Richards, is there any objection to the admission of this document?
MS RICHARDS: No, your Honour.
EXHIBIT #QF2 QANTAS AIRWAYS TWU SOUTH AUSTRALIA/NORTHERN TERRITORY BRANCH AGREEMENT DECEMBER 2001
PN150
MR SMITH: So it's true to say, isn't it, that from time to time the company and the TWU enter into local agreements?---Sure.
PN151
And those agreements are facilitated pursuant to applicable certified agreements?
---Sure.
PN152
And that those local agreements had varied aspects of - or varied the application of various aspects of applicable agreements?---I don't quite understand what you're saying.
PN153
The contents of the local agreement, they're different to what's in the - - -?---Yes, yes, yes, understand, yes.
PN154
Yes, and they're different by local agreement?---That's right.
**** CRAIG MOIR XXN MR SMITH
PN155
I've got no further questions, thank you.
<RE-EXAMINATION BY MS RICHARDS [11.09AM]
PN156
MS RICHARDS: If I can just take you to point 10 in your witness statement?
---Yes.
PN157
You say that you've never been aware that local agreements between Qantas and the employees or the TWU, been aware of any local agreement that overtime is excluded. Did you just mean part time overtime there, that there was no local agreement that part time overtime would be excluded?---When you say part time overtime, you mean?
PN158
The overtime that part time employees work?---Yes, that's right.
PN159
Craig, have you got the, what we call the 2000 local agreement, that's QF1, the first - - -?---Yes, yes.
PN160
The first one that related to that, the agreement seems to indicate that some negotiation occurred in 1999. You only started in late
1999, is that correct?
---Yes, August, '99.
PN161
So it could be possible that this agreement was negotiated but not finalised prior to you commencing employment with the company?---Yes, it could be very possible.
No further questions, your Honour.
<THE WITNESS WITHDREW [11.11AM]
PN163
MS RICHARDS: Perhaps, your Honour, if I could just indicate, this goes with all witnesses, but we'd probably reserve our right to recall them.
PN164
THE DEPUTY PRESIDENT: All right. Indeed, I think that flows from the conditional position of Mr Smith as well.
MS RICHARDS: The TWU would like to call our next and final witness, Mr Wayne Coventry.
<WAYNE COVENTRY, AFFIRMED [11.12AM]
<EXAMINATION-IN-CHIEF BY MS RICHARDS
PN166
THE WITNESS: My name is Wayne Coventry. I work - live at (address supplied) and my occupation with Qantas is a Senior Airline Service Coordinator, directly involved with planning and rostering.
PN167
MS RICHARDS: If I could just hand up to the witness a copy of his witness statement. I've got a signed copy to hand up for you to replace with attachment 12, your Honour.
PN168
THE DEPUTY PRESIDENT: Thank you.
PN169
MS RICHARDS: Mr Coventry, have you had a chance to read over your statement?---I have.
PN170
Is there any corrections which you would like to make to your statement?---No.
PN171
Is your statement factually true and correct in every particular?---It is.
PN172
Mr Coventry, if I can take you to point 8 in your statement, there you indicate that Qantas uses permanent part time employees to cover vacant lines. How long has this occurred?---I commenced in March 1992. It's been occurring since then.
PN173
And it's occurring still to this day?---Yes, it is.
PN174
Now, you say that you are the person primarily responsible for the development and implementation of rosters?---Correct.
PN175
Why in your assessment would the company use permanent part time employees to cover vacant full time lines?---One, the individual has already had airline experience. It's obviously the next transition to exposing to longer length of shift rather than trying to find someone from outside collectively with training, ASICs clearance, all those sorts of things which it takes to get someone on to an air site environment, it is a long winded process. The conversion is easy.
PN176
Why would the company use permanent part time employees to fill that role as opposed to using full timers to do it with overtime?---Simple, cost. It is easier to push someone up.
PN177
Now, can you give us an assessment of approximately how many of these vacant full time lines have been on the roster for, say, the
last year or two, how many lines would there be that permanent part timers would be working up to cover?
---Probably middle of last year it got to the point where there was 21, 22 relieving in full time lines. Currently I think it's
sitting at about, between 16 and 18.
**** WAYNE COVENTRY XN MS RICHARDS
PN178
Okay, but if it's just to cover just vacant lines, not to cover, for example, long term Workers' Comp or long term sick leave?---Correct.
PN179
In your assessment how many just vacant lines because the company just hasn't put any bodies in to do the work?---It would have averaged between eight and 12 in the last 12 months.
PN180
THE DEPUTY PRESIDENT: So as I understand what you're saying, you're saying that although there might be 16 to 18 in total in terms of relieving full time lines, somewhere between eight and 12 of those are aware it's not a relieving role?---We currently have 10 people on long term Workers' Comp so there is 10 people relieving in those lines. The additional eight to 12 that I speak about is a result of increase in roster lines, full time roster lines as a result of schedule, or people on long service leave or people on long term secondment of which we do have.
PN181
So you're saying that only 10 fit within the narrower definition of the relieving role?---Yes, correct.
PN182
MS RICHARDS: Just to clarify, is it correct to say, Wayne, that when you talk in your witness statement about these 10 lines, those 10 lines just relate to long term Workers' Comp?---Yes.
PN183
And that there are other lines which are vacant due to, for example, covering long term sick, long service leave or other instances, but if we could just put aside all that and just deal with the issues about, say, secondment, just vacant lines which haven't been back-filled, so for example - actually, perhaps I'll just simplify it. If we just deal with vacant lines which haven't been back-filled which have been caused either because there's been an increase in schedule and there are more lines created or people who were in those lines acting up which leaves a vacancy at their level, how many in your assessment over, say, the last 12 to 18 months, how much just purely just vacant lines, just not enough people to - not enough full timers?---Average 10.
PN184
Average 10?---Yes.
PN185
Now, would you be able to - do you have any records or would you be able to give us an indication of exactly which permanent part time employees were working up just to cover those just generic vacant lines at any point in time, is that information available to you?---The date and the individual of who was working up is available to us, not necessarily for what reason.
**** WAYNE COVENTRY XN MS RICHARDS
PN186
So the information is available to you about which particular employee and whether they were working up in full time work, you just can't say what they were covering?---But a method of deducting those that were working up for Workers' Comp related issues will leave you the balance.
I have no further questions.
<CROSS-EXAMINATION BY MR SMITH [11.18AM]
PN188
MR SMITH: In response to a fairly long lead up and then a question from Amy about the number of vacant lines, I just want to explore that with you a little bit. You've said that at least 10 vacant lines are due to employees being absent on long term Workers' Comp, that's right, isn't it?---Correct.
PN189
And in addition in paragraph 17 of your statement you talk about the number of full time lines that are vacant, yes?---Yes.
PN190
That's covering leave. What leave are you talking about in paragraph 17?---As a result of the increase in roster lines agreed to by the company post September 11, there has been an increase in leave line requirements of which have not been back filled by the company. So in a nutshell for every 10 employees employed, there must be one leave relief line. We know that there was a conversion of part time to full time over a period of time, but there wasn't leave relief, you know, considered. So there was vacant leave relief lines as a result of that. In other words, someone going on to a full - when full time going on leave, is leaving or vacating a full time line. Someone has to act in that role and that's the part timer in question.
PN191
So when you speak of leave in paragraph 17 you're talking about annual leave and you're talking about long service leave as well?---Not necessarily long service leave, no. This paragraph 17 was as a result of myself counting how many people were relieving in a full time line as a result of full timers being on leave.
PN192
Annual leave?---Annual leave only, yes, not long service.
PN193
Or sick leave?---Or sick leave.
PN194
Now, in paragraph 18 you estimate that there are two, approximately tow vacant full time lines which have not been back filled, that's right, is it?---Yes.
**** WAYNE COVENTRY XXN MR SMITH
PN195
Now, Wayne, you commenced with the company in 1992?---Correct.
PN196
And you've been in your current position since August 1999?---Correct.
PN197
Since August 1999 you've been involved in developing and implementing rosters?---I have.
PN198
On the Adelaide ramp?---Correct.
PN199
I'd just like to show the witness a document, please. Your Honour, I've handed the document QF1.
PN200
THE DEPUTY PRESIDENT: Thank you.
PN201
MR SMITH: Have you seen the document marked QF1 before?---I have.
PN202
Had you seen it at the time that you drafted your statement?---I believe I had, yes.
PN203
When you prepare your rosters do you have regard to the operation of QF1?---No, I don't.
PN204
Wayne, in paragraphs 11 and 12 of your statement you talk about the situation post September 2001 which was the time at which Ansett collapsed?---Yes.
PN205
And you would agree that there was a substantial influx of work at Adelaide airport flowing to Qantas as a result?---There was a little bit, yes.
PN206
Are you aware that a local agreement was reached in relation to how part time hours would be dealt with as a result of the Ansett collapse, and the taking on of that work by Qantas?---I was. I believe I was part of that and that was for a short term period.
PN207
Yes, and in December 2001?---Yes.
PN208
So it informed, by agreement between the parties about how TWU EBA4, I think it was at that stage, would be applied in relation to the calculation of part time hours for the purposes of assessing whether there was a conversion to full time employment, do you agree with that?---I would.
**** WAYNE COVENTRY XXN MR SMITH
PN209
So it's been your experience that from time to time the parties by way of local agreement made - or, sorry, your experience of the company and the TWU enter into local agreements?---Yes, it has happened.
PN210
Yes, and that those local agreements sometimes vary what would otherwise be the strict application of a certified agreement?---Certainly.
PN211
Yes, you'd agree with that?---Yes.
No other questions, thanks.
<RE-EXAMINATION BY MS RICHARDS [11.26AM]
PN213
MS RICHARDS: Wayne, if I can just take you back to this issue about the vacant full time lines which have not been back filled. When I initially asked you that question earlier you indicated that in the last sort of 12 to 18 months there was an average of about 10 lines which had not been back filled. I just noticed an anomaly in your statement which Mr Smith took you to at point 18, you say there's two vacant full time lines which have not been back filled. Because this will become a substantial issue, I just really wanted to clarify exactly how many vacant full time lines have not been, at this point in time have not been back filled?---I believe I - in that particular point 18 was about two individuals that had been - left the department and have still yet to be filled. One has gone to engineering, the other one has gone to GSE, Ground Equipment Servicing.
PN214
So your statement that there's approximately 10 or there has been in the last 12 months or so, 10 vacant lines which permanent part time employees have been working up which haven't been back filled still stands?---Correct, yes.
PN215
Mr Smith has taken you to this local agreement, the one in 2000. Since you've been in the role has there been any aggregation of accumulation of hours when a permanent part time employee works up in relief employment, has there been the policy of the company that any - that there would be any hours aggregated to their cap?---Whilst working in a full time role they've accrued the average of the part time roster that was being worked by the part time rostered at that time which of course would vary.
PN216
In your assessment how long has that occurred?---That has pretty well occurred from the time I have done my role.
**** WAYNE COVENTRY RXN MS RICHARDS
PN217
How long have you been in your role?---Since 1999.
PN218
1999?---Yes.
PN219
So notwithstanding what it says in this local agreement there's always been the policy of yourself and the company to aggregate the part time hours on the roster and add those to a person's accumulation for the purposes of the cap even though they're in full time employment?---Correct.
PN220
So effectively if I take you to QF2, this is the second local agreement, if you go to point 2 it indicates that:
PN221
Only the rostered average hours, 28.5, will count in calculating total hours.
PN222
So effectively that's just confirming what the practice has always been?---Correct, and that would be for that time period of four weeks.
PN223
Certainly but is it confirming the practice which had occurred prior to then anyway?---Yes.
PN224
No further questions.
PN225
MR SMITH: I've got a question arising out of - - -
PN226
THE DEPUTY PRESIDENT: Any objection to that, Ms Richards? Perhaps I'll get Mr Smith to outline the question.
MS RICHARDS: That would be helpful.
<FURTHER CROSS-EXAMINATION BY MR SMITH [11.29PM]
PN228
MR SMITH: Wayne, Amy just asked you about the practice which you've indicated that was in place in relation to - - -
PN229
MS RICHARDS: Excuse me, your Honour, could we just indicate that we'd prefer the witness not to answer the question until an opportunity to indicate whether that question is to be answered?
PN230
THE DEPUTY PRESIDENT: Yes, very well. Do you understand that, Mr Coventry?---I understand, yes.
**** WAYNE COVENTRY FXXN MR SMITH
PN231
MR SMITH: Sorry, Wayne, Amy took you to the question about the - an alleged practice that part time hours on the roster were averaged and then applied to the annual aggregate to those part timers acting up in full time employment. Sorry, it's a very convoluted matter, I know, but I think I captured it. Do you recall that line of questioning?
PN232
MS RICHARDS: We're happy for the witness to answer that question.
PN233
MR SMITH: Yes?---Yes.
PN234
Whilst those figures may have been collated that way by you or by others, they were never applied that way to the work force, were they?---Yes, they were.
PN235
MS RICHARDS: We quite like that answer, so we'll go with that one, your Honour.
PN236
MR SMITH: I want to put to you, Wayne, that that is not in fact the case and indeed, there are a number of employees who currently say that they haven't been treated that way at all, do you agree with that?
PN237
THE DEPUTY PRESIDENT: Ms Richards, it seems to me, given that the issue has now been opened up, the only fair way is to allow the line of inquiry to be completed and if there is any further re-examination that arises, you can deal with it then.
PN238
MS RICHARDS: Sorry, perhaps I can just bring up an issue with that particular point, that particular question. That question asked the witness about the intentions of other people and that's hearsay or he can only attest to what his opinion is, not what the opinions of other personnel of the work force are.
PN239
THE DEPUTY PRESIDENT: Mr Smith, that might well be a difficulty.
PN240
MR SMITH: Yes. If I approach it another way, perhaps. If the company had applied the agreement in the way you're suggesting, Wayne, that would have potentially given rise to conversions, wouldn't it, during the - - - ?---It would have, yes.
PN241
But those conversions didn't always occur, did they?---Not always, no.
**** WAYNE COVENTRY FXXN MR SMITH
PN242
No further questions, your Honour.
<FURTHER RE-EXAMINATION BY MS RICHARDS [11.33AM]
PN243
MS RICHARDS: Wayne, after the collapse of Ansett, or since the collapse of Ansett has there been any conversions which have occurred since the collapse of Ansett, has the company converted any positions?---Yes, there has.
PN244
Approximately what time would that have occurred?---Post the month of December 2000, which is the month in question. There was quite a large number as a result of the clean up of this postponement of the - you know, the accumulation of hours.
PN245
Okay, so the company has made conversions?---Yes.
PN246
And considering that the agreement over that period was that they would count this average of 28.5, then would it be correct to assume that they would have considered those hours in determining the conversions?---Yes, they would have.
PN247
Thank you. No further questions.
PN248
THE DEPUTY PRESIDENT: Just arising, Mr Coventry, is it your role in setting the rosters, do you have a free hand to do that?---I do.
PN249
So management, if I can use that broad expression, don't influence that, do they?
---No, in the time I've been doing it they've never got involved.
PN250
So they don't instruct you as to who to include?---They don't instruct me.
PN251
Or what factors to take into account?---No.
PN252
So in relation to the non filling of lines, I presume that's a management decision?
---It is a management decision in regards to getting extra people over the fence, in regards to the temporarily filling of lines
up. The process on who does that is handled within ourselves as a department, but the permanency of course comes down to the company.
PN253
But in relation to the decision to use part time extension rather than full time overtime, who makes that decision?---Myself.
**** WAYNE COVENTRY FRXN MS RICHARDS
PN254
Have you been given instructions about that?---I've been given - my instructions are basically to cover the schedule at the cheapest possible option which of course dictates the mix of full time and part time, and that's always been my role.
PN255
Thank you. Is there any issues arising from that?
PN256
MR SMITH: No, your Honour.
PN257
MS RICHARDS: No, your Honour.
PN258
THE DEPUTY PRESIDENT: Secondly, noting that Mr Hutchison is not going to give evidence, before I release Mr Coventry, given his role, were the parties able to agree the numbers that relate to the various categories of hours for Mr Hutchison?
PN259
MS RICHARDS: I've done calculations, your Honour. Based on the TWUs interpretation, if you add Mr Hutchison's part time hours while working as a part timer, overtime hours whilst classified as a part timer and in terms of classified, I would use the - in the key, for example, it indicates whether there are full time or part time, so in terms of - we would use that as a classification for Mr Hutchison on this example. If you add those two hours together, plus the average part time hours on the roster at the time that Mr Hutchison was working in full time relief employment the figures come to 1319 hours and 40 minutes. The cap in question is 1410 hours.
PN260
So based on those set of facts, it indicates that Mr Hutchison hasn't worked enough hours to successfully convert, however the TWU will further indicate that we believe that Mr Hutchison, along with all other part time employees, have been used to work up in full time work which is not specifically covered in either the local agreement QF1, or under the terms of EBA6 and that is in the - I'll get to this, but the evidence that the company leads indicates there's approximately at least four full time lines.
**** WAYNE COVENTRY FRXN MS RICHARDS
PN261
So the TWU would be submitting that those hours need to also be counted and what we would be suggesting would be that we'd seek a determination from yourself that those hours do count and that they should be evenly distributed amongst all the part time employees because the company is not able to indicate which employees were working at what time to cover what work. So because he permanent part time employees tend to rotate through full time relieving work, we would say that because the company can't provide any details, we believe those hours should be counted and the most equitable way to do that would be to aggregate them and divide them equally across all the full time - excuse me - all the part time employees.
PN262
THE DEPUTY PRESIDENT: Is there any evidence, though, as to the extent of hours which fit into the various categories, bearing in mind that a dispute exists as to what you do with those hours?
PN263
MS RICHARDS: Perhaps to explain this, this is why myself and Mr Smith were asking Mr Coventry about these full time lines which are just generally vacant and they haven't been back filled, because of the TWUs line of argument, we believe that some hours should be counted towards the cap for that purpose because the company hasn't strictly applied either the local agreement or the EBA6 correctly in terms of using permanent part time employees in relief employment.
PN264
THE DEPUTY PRESIDENT: So would that - - -
PN265
MS RICHARDS: It's a further complication of the matter, I understand, though.
PN266
THE DEPUTY PRESIDENT: It is.
PN267
MS RICHARDS: I understand, your Honour, but effectively what the TWU is saying was that the company hasn't, even if they're successful in relying on their local agreement, they've still used part time employees outside the scope of the local agreement or outside the scope of EBA6 and because neither the local agreement or EBA6 specifically excludes those hours in terms of the accumulation of the cap, we say that those hours need to be added to be able to determine whether entitlement arises, and because the company does not have records about whose hours they should be apportioned to, we believe that there needs to be a calculation of what the aggregate hours would be and then apportioned evenly between all the employees. We believe that's the most equitable way to be able to determine.
**** WAYNE COVENTRY FRXN MS RICHARDS
PN268
THE DEPUTY PRESIDENT: So, just for the purposes of this question that QF1 is relevant, you're saying that - - -
PN269
MS RICHARDS: If I take you to QF1, if we look at point 3 - - -
PN270
THE DEPUTY PRESIDENT: Yes. You're saying they're hours beyond - - -
PN271
MS RICHARDS: Any hours beyond the scope of long term Workers' Compensation, long term sick leave or long term - sorry, long service leave should be counted.
PN272
THE DEPUTY PRESIDENT: And you say if you do that in relation to Mr Hutchison that will produce the result you seek?
PN273
MS RICHARDS: That is correct. If - I've just done some basic figures, but the witness for Qantas will indicate that currently there's four vacant full time lines, which he's admitted have not been back filled. Now, this is a very simplistic exercise, but if we make an assumption that there has consistently been at least a minimum of four vacant lines over the preceding 12 months, or even longer, that works out to four vacant full time lines, times by 38 hours a week, will give you a figure, times that by 52, that will give you an aggregate of hours for a 12 month period, and then we believe that should be divided by the number of full time employees.
PN274
The evidence the company will lead indicates there's currently 46 full time employees on the establishment. My understanding is that there is an agreement that - sorry, part time employees, sorry - I'm getting a bit confused here. There's 46 part time employees. My understanding, and perhaps Mr Smith can just indicate whether it's dispute or not, is that there is an understanding that for the first nine months when a permanent part time employee starts with the business they're not eligible to act up, to do full time work.
PN275
So if you've got 46 current employees and there's currently 10 who have been with the business just on a year now, but when we notified this, people had been there less than a year, you deduct those 10 because they wouldn't have been eligible to do that work. That's 36 employees, which works out to - we divide that equally my calculations indicate it comes to an additional 219 hours and 55 minutes, and if you add that to Mr Hutchison's aggregate of 1319.4, it comes to a total of 1538 and we would submit that that exceeds 1410 and hence the conversion is triggered.
**** WAYNE COVENTRY FRXN MS RICHARDS
PN276
THE DEPUTY PRESIDENT: Perhaps in an appropriate break you might commit that to writing, handwriting will be fine.
PN277
MS RICHARDS: Certainly.
PN278
THE DEPUTY PRESIDENT: I think the bottom line of that is that unless either party wishes to put any further questions to Coventry I'll release him.
PN279
MS RICHARDS: That's acceptable, your Honour.
PN280
MR SMITH: Nothing, thank you, your Honour.
THE DEPUTY PRESIDENT: Yes, very well. You're finished, Mr Coventry, you can stand down. You're released subject to the exceptions as discussed earlier. Thank you.
<THE WITNESS WITHDREW [11.44AM]
PN282
MR SMITH: Your Honour, I only have one witness, Adrian Ross.
PN283
THE DEPUTY PRESIDENT: I take it you've closed our case, Ms Richards?
PN284
MS RICHARDS: Yes, we have, your Honour.
PN285
THE DEPUTY PRESIDENT: Subject to the provision of those calculations in writing?
PN286
MS RICHARDS: That's correct. What I've just had a short discussion with Mr Smith is about what we propose to do, and moving forward, is if the company can put on their witness and we can deal with that witness evidence and then perhaps have a short adjournment or even may break for lunch, then I can calculate these figures and we can hand this up to your Honour our final submissions after that.
PN287
THE DEPUTY PRESIDENT: Good, thank you.
MR SMITH: Your Honour, I'm seeking to call Adrian Ross.
<ADRIAN ROSS, SWORN [11.46AM]
<EXAMINATION-IN-CHIEF BY MR SMITH
PN289
THE WITNESS: My name is Adrian Ross, address is (address supplied) and Ramp Manager for Qantas Airways in Adelaide.
PN290
MR SMITH: Adrian, did you prepare a statement for today's proceedings?---I did.
PN291
Do you have it with you?---Actually I don't have a copy of it with me, no. It's been supplied to yourself.
PN292
Do you have a statement with you now?---I do, thank you.
PN293
Are there any changes to that statement?---Not that I'm aware of.
PN294
Is it true and correct to the best of your knowledge and belief?---To the best of my knowledge and belief it is correct, yes.
PN295
I'd seek to tender that statement, your Honour.
PN296
THE DEPUTY PRESIDENT: Any objection?
MS RICHARDS: No, your Honour.
EXHIBIT #QF3 STATEMENT OF ADRIAN ROSS
MR SMITH: I have no questions for Mr Ross.
<CROSS-EXAMINATION BY MS RICHARDS [11.48AM]
PN299
MS RICHARDS: Mr Ross, at point 3 of your statement you indicate that you've been the manager of Ramp Services Adelaide Airport since October 2004, is that correct?---Yes, it is.
PN300
If I can take you to point 12 of your statement, point 12 being you indicate there's currently 46 part time employees on the establishment, is that correct?---Yes, that was my calculation at the time, yes.
PN301
Of those 46 part time employees approximately how many have only just recently finished their first year of service?---Without looking into the details it's about 10, I believe.
**** ADRIAN ROSS XXN MS RICHARDS
PN302
And when a permanent part time employee is in their first year of service, is it correct that they're unable to work up to do full time relief work for the first nine months of their service?---Yes, that's true.
PN303
At point 13 of your statement you indicate that part time employees are used to cover vacant full time line. You say that's currently in the region of four. Since you've been the Manager Ramp Services at Adelaide, is it possible that there could have been more than four vacant full time lines during that period?---Yes, very possible, yes. I'm not sure that there was, but it certainly is possible, yes.
PN304
If I can just hand up to the witness QF1. Mr Ross, you've seen this document before?---Yes.
PN305
When did you first come to see this document?---About a week ago.
PN306
So you hadn't seen it any time prior to that?---No, I hadn't.
PN307
So prior to that document, which industrial document would you rely on to - as a basis for determining what hours are included for the purposes of determining whether an employee, a part time employee has exceeded their cap?---Well, I never actually - for a start, I've never actually had to refer to any actual document. When I started there there was an arrangement in place which I didn't see any need to question, but when questions were started to be asked I referred to my management and my HR department, and I actually referred to a document.
PN308
So are you aware that EBA - notwithstanding that local agreement, considering you hadn't seen it until last week, would it be correct to state that you believe that the enterprise agreement, which that one was in place at the time, but at this point in time EBA6 would be the appropriate document to look at to determine what entitlements would arise in relation to the cap and how the hours would be calculated?---The EBA was certainly a document that I would have referred to. I did have - I had had verbal advice however that there was an arrangement in place. But I'd never actually sighted the document or really knew much of the details about it.
PN309
If I take you to point 3 in that document?---In the local agreement?
PN310
Yes, that's correct, it indicates that part time employees may cover full time employees how are on long term Workers' Compensation, long term sick leave or long service leave, that's correct?---Yes.
**** ADRIAN ROSS XXN MS RICHARDS
PN311
If you can have a look over the document I'll put to you that this document does not provide an ability for the company to allow part time employees to work in full time employment in any areas other than those three, would you agree with that?---My further comment would be that they - you can have part time employees working up, but their hours would then count towards the cap.
PN312
Sorry, can you please repeat that?---You could have part timers working up for other reasons, but their hours would count towards the cap.
PN313
Their hours would count towards the cap. So is it correct to state that if a part time employee was working up in a vacant full time line, that this agreement does not provide that their hours do not count?---I think we've agreed on that.
PN314
Okay. If I can just hand up a copy of EBA6 and take you to point - the highlighted point there, just, your Honour, for your benefit, I'm directing the witness to EBA6 which his attachment 4, clause 18.6.1.
PN315
THE DEPUTY PRESIDENT: Yes, I have it.
PN316
MS RICHARDS: I make a statement to you that 18.6.1 provides that permanent part time employees are able to be transferred to relief employment only in certain circumstances, for example, or specifically - sorry, I might have the wrong clause reference there. Sorry, 18.9.2(a), my apologies. The relief employees are only employees who cover annual leave, long service leave, Workers' Compensation and rostered days off, is that correct?---Yes. I don't have any reason to disagree with that.
PN317
Okay. Now, if I take you again, sorry, to 18.6.1, that provides the ability for the company to transfer permanent part time employees by agreement to full time relief employment for those purposes?---Yes.
PN318
So I would say that notwithstanding the local agreement, if you put that to one side, the EBA indicates that you're able to work permanent part time employees in relief employment for certain circumstances, but circumstances such as agreeing to allowing permanent part time employees to work up in vacant full time lines is not explicitly provided for in the EBA?---No, no.
PN319
Is it correct to say that the EBA does not provide for any hours where an employee does that to be excluded from the cap?---Not that I - I'm not aware of where that would be excluded, no.
**** ADRIAN ROSS XXN MS RICHARDS
PN320
Thank you. If I take you to 18.6.2, it clearly provides that the average permanent part time hours on the roster at the time of engagement relief employment will count as rostered hours when applying for cap on permanent employment. Did you know about that provision in the EBA prior to me bringing that to your attention?---Yes, yes.
PN321
Have you been applying that provision in the EBA since you've been the local manager?---No.
PN322
Is there any reason why you have not?---It wasn't done when I started. It hadn't been done from my knowledge for a number of years and it wasn't until this issue started to come to hand that we started to look - you know, what were the rules.
PN323
I have no further questions, your Honour.
THE DEPUTY PRESIDENT: Any re-examination?
<RE-EXAMINATION BY MR SMITH [11.56AM]
PN325
MR SMITH: Adrian, would you be able to indicate to the Commission whether part time employees are ever required to act up in full
time annual leave lines?
---No, not to my knowledge. We have separate lines for that.
PN326
No other questions, your Honour.
MS RICHARDS: Sorry, Your Honour, may I just ask an additional question. It's perhaps just to clarify the question that Mr Smith asked.
<FURTHER CROSS-EXAMINATION BY MS RICHARDS [11.57AM]
PN328
MS RICHARDS: If part time employees don't act up in full time leave lines, who does?---They do.
PN329
Permanent part time employees do act up?---Yes, yes.
Thank you?---Sorry, I believe they do, yes. I don't - there isn't anyone else that can act up.
<FURTHER RE-EXAMINATION BY MR SMITH [11.57AM]
PN331
MR SMITH: Adrian, would it be fair to say that those leave lines could also be allocated to other full time employees?---No. The way - we have extra leave lines in there which are for full timers on leave and we have actually permanent full time staff to cover those leave lines. That's my understanding of it.
**** ADRIAN ROSS FRXN MR SMITH
PN332
No further questions.
MS RICHARDS: Sorry, I'm just a little bit confused, your Honour. Perhaps if we can just clarify this situation.
<FURTHER CROSS-EXAMINATION BY MS RICHARDS [11.58AM]
PN334
MS RICHARDS: You just indicated to myself or my understanding of what your response was, was that permanent part time employees do cover the work generated by these full time leave lines because full timers have to go on leave. You just indicated to Mr Smith that it's actually the full timers - - -?---Well, there's extra - we have extra lines built into the roster which are full time leave lines.
PN335
Now, if you take aside the leave lines are generated because full timers are on leave, which employees are actually the ones that act up to cover that?---Well, you could take that either way. You could take it that it's a part timer that's acting up in the full time position to cover it, or you could take it that it's a substantive full timer working there.
PN336
Thank you?---Take it either way. I mean, it really would be difficult to determine who is actually physically relieving at the time.
PN337
Am I correct in assuming that - no further questions, actually.
PN338
THE DEPUTY PRESIDENT: Ready for Mr Ross to be released?
PN339
MR SMITH: Thank you, your Honour.
THE DEPUTY PRESIDENT: Yes, thank you, Mr Ross. You're released subject to the caveat that applies in relation to all witnesses in this matter.
<THE WITNESS WITHDREW [11.59PM]
PN341
THE DEPUTY PRESIDENT: Mr Smith, just in relation to your other document, which is your outline, do you want that marked as a matter of completeness?
PN342
MR SMITH: Yes, please, your Honour.
THE DEPUTY PRESIDENT: I appreciate it's not evidence, but we've included it as part of TWU1 submissions as well, so just I think for the exception of balance, it's important that I adopt the same process. So in that context the outline of submissions by Qantas dated 13 April 2006 will be marked as QF4.
EXHIBIT #QF4 OUTLINE OF QANTAS SUBMISSIONS DATED 13/04/2006
PN344
THE DEPUTY PRESIDENT: Does that close your case from an evidence point of view?
PN345
MR SMITH: It does, thank you, your Honour.
PN346
THE DEPUTY PRESIDENT: Very well, thank you. Ms Richards, I think you were foreshadowing earlier a break at this point?
PN347
MS RICHARDS: Yes, the TWU would be grateful if perhaps we could break for a short period so that we can prepare our closing and also in light of the evidence of the witnesses and also to provide those calculations to yourself and also to Mr Smith.
PN348
THE DEPUTY PRESIDENT: I wonder in that context, whilst it's a bit early, if we break for lunch and say, to give you both an opportunity to do that and to have a lunch break, if we resume at, say, 1.30?
PN349
MS RICHARDS: That would be acceptable.
PN350
THE DEPUTY PRESIDENT: It's quite clear we'll finish today without any difficulty, I'm sure.
PN351
MS RICHARDS: Yes, I think so, your Honour.
PN352
THE DEPUTY PRESIDENT: Are you happy with that course of action?
PN353
MR SMITH: Yes, your Honour, that's fine.
PN354
THE DEPUTY PRESIDENT: We'll adjourn till 1.30.
<LUNCHEON ADJOURNMENT [12.01PM]
<RESUMED [1.30PM]
PN355
THE DEPUTY PRESIDENT: Yes, Ms Richards?
PN356
MS RICHARDS: Your Honour, as we discussed prior to breaking for lunch, if I can perhaps hand up to the Commission - and a copy of this has been provided to Mr Smith - it's a breakdown of the hours for Mr Hutchison.
PN357
THE DEPUTY PRESIDENT: Very well.
PN358
MS RICHARDS: You can appreciate the different permutations of what the TWU says in relation to the hours. I will just give you a chance to have a look at that.
PN359
THE DEPUTY PRESIDENT: Thank you.
PN360
MS RICHARDS: Are there any questions about that?
PN361
THE DEPUTY PRESIDENT: No, I can understand that. Mr Smith, I propose to mark this unless there's any objection.
PN362
MR SMITH: No objection, your Honour. I might just add, we had the opportunity to check the figures over the lunch time break. We got a slightly different number but it wasn't materially different. In the time available that's where we got to.
PN363
THE DEPUTY PRESIDENT: So do I take it then for the purposes of this arbitration you're content for the Commission to use these figures as being agreed?
PN364
MR SMITH: Yes, your Honour.
THE DEPUTY PRESIDENT: Yes, very well. Then I will admit and mark the summary of figures associated with Mr Hutchison as TWU2.
PN366
MS RICHARDS: Thank you, your Honour. As you'd appreciate today the parties have narrowed down the aspects which are in dispute and to summarise the aspects in dispute. One is point 1(b)(iii) in our draft order, whether the average permanent part time hours on the roster whilst working in full time relief employment count for the purposes of the cap. Another issue which my submissions will go to is the issue about whether hours when permanent part time employees working non relief type employment, whether those hours should count as well.
PN367
In relation to the local agreement which the company has submitted and has been considered, that agreement was made under a facility provision which indicates that all hours whilst an employee is working up in a full time capacity to cover long term Workers' Compensation, long term sick leave and long service leave do not count for the purposes of an automatic conversion. That agreement was signed in approximately February 2000.
PN368
In our submissions, and if I can take you to this again, in the first instance, in the Frittum & Minard case which was the SDP Drake first instance decision, this was handed down and considered subsequent to this local agreement in approximately March 2001. My submissions indicate, and I'll reiterate, that the transcript of that particular matter at tab - it's marked at point 7 in the attachment.
PN369
THE DEPUTY PRESIDENT: Yes.
PN370
MS RICHARDS: Indicates that Mr Rodolfo, a local manager at the airport, indicates that it was custom and practice of the company to consider an average, I think at that time it was 27 hours. So that the company at that point in time, subsequent to this local agreement, has indicated that they have used an average of 27 hours to count towards a permanent part time employee's aggregate. Further, in the appeal for that decision, which was considered and handed down in approximately June 2001, and that's at attachment 8 in our TWU1.
PN371
At the transcript at paragraphs 258, 260, 284 and 292 there's a theme in that where Qantas indicates that their position was in fact that the average hours on the part time roster would count for the purposes of the cap in lieu of the rostered full time hours that the employee would have worked whilst there in relief temporary full time employment. So what we're saying there is that subsequent to this local agreement, both in the first instance and the appeal decision, the company has indicated that they were using an average hours as accumulating for the purposes of determining whether a part time employee, whether their hours were exceeded.
PN372
Particularly at paragraph 258, 259, Qantas' advocate indicates when they refer to this separate agreement, and we would say that they're referring to the agreement which Mr Smith has provided today, which is QF1, they say that this agreement did not impinge in any way by variation override the provisions of EBA3. They also go on to state that further it was an agreement as to fact and it was an agreement which did not in any way vary EBA3.
PN373
From my understanding the submissions that the company will lead today is in effect that EBA3 has substantially been varied by this local facilitative agreement, and that stands today. It appears to us that Qantas has now done a complete back flip from what they have said previously, both on transcripts of both those matters and now they do say that this facilitative provision did and does in effect vary the certified agreement just in relation to the Adelaide port.
PN374
It must be noted that if the Commission decides that this facilitative agreement does apply, we would like to indicate that we would submit it only applies for Adelaide, but I don't think that that's in distinction. We just needed to indicate that because we believe that it would not provide a precedent to apply in other states. Mr Smith also took you to the Ansett agreement, that is QF2, which was made subsequent to both the Frittum & Minard decisions, both in the first instance and the Full Bench decisions, and in that agreement it indicates that this average hours will be included and we say this supports our argument, the company had always applied this average to a person's calculation.
PN375
Further, if you look at EBA5, which was certified subsequent to that, this is where the provision was directly inserted which provides that this averaging exercise would occur and we would say that that insertion in EBA5, notwithstanding it would have had application to all ports in Australia, this was confirming the position which had already occurred in Adelaide. Further, EBA6, again confirms this as past practice and confirms that - so there's a slight nuance in terms of the full time relief employment and what is considered to be full time relief employment.
PN376
There's an anomaly between what's in the facilitative agreement and what is in the EBA. We say that EBA5 and EBA6 confirms this past practice. Further, our witness - - -
PN377
THE DEPUTY PRESIDENT: When you talk about averaging, averaging of what precisely?
PN378
MS RICHARDS: When I'm talking about averaging I'm talking about the average permanent part time hours on the roster as the time the permanent part time employee began acting up in relief employment, would account for the duration of time that they're in that relief employment. That's what I'm talking about, your Honour, when I'm talking about an averaging here. Apologies if I didn't make myself clear.
PN379
Further, if we take you to the witness evidence of Mr Coventry, he has indicated that since 1999 when he has commenced employment with the company they've always engaged in an exercise where they've added this part time average to the accumulation. So we would say that this indicates that it has been the custom and practice of the company and also that it has occurred notwithstanding the supposed local agreement.
PN380
If we take you to the QF2 and the Ansett agreement, we would say again that this indicates clearly, particularly with that Ansett agreement, that an averaging, I think it was 28.5 I think, would occur for that period of that month when that agreement applied and we would say again that this confirms past practice of the company. Further, our witness, Mr Coventry, indicated that conversions had occurred subsequent to this Ansett agreement and we would say that those hours, this average hours were taken into consideration when the company decided to convert positions.
PN381
If I can move on now. It must be noted that the EBA and even the local agreement indicate that part time employees are only able to undertake full time relief employment to cover certain situations. As I mentioned, there's a slight differentiation between the local agreement and the certified agreement about in what instances that can occur, but we will clearly say that there are set parameters on when employees are able to work up and we would say that neither the EBA nor the local agreement provide for a situation where permanent part time employees are able to work up to cover full time vacant lines which are vacant due to positions not being back filled. That's not to say that it can't occur, but there is no specific exclusion in either the EBA or the local agreement which provides that those hours do not count.
PN382
Qantas' own witness has indicated that there is at least four vacant full time lines which have not been back filled, and that permanent part time employees have been used to cover these lines. This is clearly outside of the scope of EBA6 and also the local agreement. Our witness, Mr Coventry, has indicated that there have been approximately 10 vacant full time lines over the last 18 months and that it is the company's practice to use permanent part time employees to cover these vacant lines because it is a cheaper cost to the business than using full timers to cover this work using overtime.
PN383
We say that all ours worked by permanent part time employees to cover vacant full time lines should count for the purposes of the cap because there is no specific exclusion in the EBA, nor the local agreement. So, as I discussed earlier, your Honour, we would be proposing a situation where if we make an assessment that there has been at least a minimum of four vacant lines on the roster for each week during Mr Hutchison's 12 month period, we would say that at that point in time there would be approximately 36 permanent part time employees who would be eligible to undertake that work.
PN384
We propose an exercise where you make an assumption that those employees had shared in that work because there is a rotating system in operation at that port, and based on our calculations that would result in an additional 219 hours and 55 minutes which need to be added to Mr Hutchison's calculation. We would say that if we were successful in getting a determination on that point, that those 219 hours and 55 minutes would also then need to be applied to the 36 eligible employees in terms of making assessment about whether their positions convert.
PN385
We would clearly state that we believe that there is no dispute that the position converts, as opposed to the employee, but we're just using Mr Hutchison for an example. So we would say that based on all the evidence presented today and the TWUs submissions, that Mr Hutchison's position should convert and hence we'd be seeking a draft order in the terms sought. If the Commission pleases.
PN386
THE DEPUTY PRESIDENT: Ms Richards, just in relation to exhibit QF1, what do you say about that? Is it still applicable, is it still part of the relevant consideration for present purposes?
PN387
MS RICHARDS: Look, I think it's something that you alluded to earlier today, your Honour. There's an issue about EBA1 to 5 which have historically been read together. We're in a different situation to EBA6 where EBA6, if I can quote this so I get it correct, EBA6 is a comprehensive agreement which replaces all other awards, and reading from 6.2, your Honour.
PN388
THE DEPUTY PRESIDENT: Yes.
PN389
MS RICHARDS:
PN390
This agreement consolidates and consequently supersedes and replaces the agreements.
PN391
And that's supersedes and replaces agreements 1 to 5. So there could be a concern there that because EBA6 replaces 1 to 5, there could be a technical argument that the facilitative provision is not operative because the EBA that it was made under has been replaced. There's obviously implications for that in terms of other facilitative provisions in other ports, and that's something that the TWU has considered, but we didn't really want to put extensive arguments here today on that point.
PN392
THE DEPUTY PRESIDENT: All right. So are you inviting the Commission to deal with the matter on the basis that QF1 is still relevant and applicable?
PN393
MS RICHARDS: I think it's quite complicated in that I'm coming from a federal office here, your Honour. There's parties here that can represent South Australian interests, but the TWU has got a concern about - perhaps if I can rephrase. Having this issue in dispute now has brought up the instance where it's become apparent to both myself and Peter Smith that there may be implications for other facilitative provisions. To my understanding there have been no facilitative provisions made under EBA6. We're in a different situation now where EBA6 is effectively replaced by EBA1 to 5. So there are instances in other ports where there are facilitative provisions which the parties are honouring as being on foot. But in terms of EBA6 now there may be a question about whether they are actually legally effective.
PN394
THE DEPUTY PRESIDENT: I understand your proposition is that in any event - - -
PN395
MS RICHARDS: That's my proposition, your Honour.
PN396
THE DEPUTY PRESIDENT: That in any event the, to use a term in TWU2, non temporary relief full time hours will take that employee over the cap irrespective of how broadly you apply the scope of eligible temporary relief.
PN397
MS RICHARDS: Well, I think the issue is effectively, and Mr Smith may correct me if I'm wrong, but hypothetically I think the position would be that if you were to make a determination that the facilitative provision under EBA3 would stand, then we would be in a situation where, notwithstanding adding those additional 217 hours, which is the average hours that that particular employee would not - that particular employee's position would not convert, because in his particular factual situation, in that particular 12 month period he's probably done more full time work than not.
PN398
So in effect if the TWU is not able to succeed on the point that any hours would count while he's in full time work, then he would be in a situation where his hours would be substantially lower than the cap.
PN399
THE DEPUTY PRESIDENT: Yes, but my understanding is that you say that irrespective of whether QF1 applies or not, that there is a class of work beyond what you say is eligible temporary relief, so as to be excluded from the cap, and if you add any of that, that will be enough to create the conversion? What I'm getting at is, in the sense of whether I actually need to determine the issue about the status of QF1, because if I do, clearly I'm going to ask you to nail your colours to the mast.
PN400
MS RICHARDS: I think with that particular factual situation, in order to determine whether a conversion arises, there would need to be a decision on whether QF1 is applicable, unfortunately.
PN401
THE DEPUTY PRESIDENT: Well, in that context then you'll appreciate that I need you to put a position to me on that.
PN402
MS RICHARDS: And perhaps if I can summarise, we would say that our position is that if you look at the Frittum & Minard transcripts of the officers involved, they indicate that the average hours were included. If you look at the Ansett agreement we say that that confirms our position. If you look at EBA5 we would say that that basically solidifies the position that we say occurred locally in Adelaide even up to prior to 1999 and we would say that Mr Coventry's evidence gives an indication that those hours were included, because EBA6 effectively adopts those clauses in EBA5.
PN403
We would say that that is the position now, and again, as I said, if you look at the evidence of Mr Coventry, it would indicate that notwithstanding the application of that clause, we would say that it is the custom and practice overrides any potential application of that particular provision. But there's a clear chain of events that indicate that that facilitative provision does not apply in the way that Mr Smith will indicate that it does. We would say that the facilitative provision is deemed to be applicable, really should be read to provide that the average part time hours on the roster should be included.
PN404
THE DEPUTY PRESIDENT: Yes, but that doesn't get your example over the line, does it? You need the (d) hours to get over the line.
PN405
MS RICHARDS: Yes, we would need the (d) hours to get over the line in that particular factual situation.
PN406
THE DEPUTY PRESIDENT: But isn't the evidence about averaging going to the (c) hours here rather than the (d) hours?
PN407
MS RICHARDS: No, we would say that there needs to be two averaging exercises. There is one in relation to (c) which is - perhaps if I take you to attachment 1.
PN408
THE DEPUTY PRESIDENT: Yes.
PN409
MS RICHARDS: If we look at Mr Hutchison, the third example down. If I take you to the first column, the first week for his instance,
it's beginning
29 December 2004, the actual rostered hours while he's in full time employment is 42. That's not disputed. But the part time rostered
hours is 28 and you'll see that that flows all the way through for that particular year. So we're saying that those 28 hours should
count and that's what's taken into consideration in Roman numeral (iii), Roman numeral (iii) in our draft order, but also that this
additional 217 hours is encapsulated under point 1(b)(i) and (ii) because if these permanent part time employees were undertaking
full time work, they're not classified as full time relief employees. They're still permanent part time employees.
PN410
So it would actually be encapsulated under 1(b)(i) because they're actually rostered hours. The roster provides for them. They're just vacant and nobody fills them, so we would say that those additional 217 hours actually is encapsulated under 1(a)(b)(i), we would say that we'd be seeking a determination from the Commission that for the purposes of dealing with this matter retrospectively that that global figure of 217 hours be included in that provision. Do I need to clarify that any further?
PN411
THE DEPUTY PRESIDENT: You do. Can I ask you to deal with - go to TWU2.
PN412
MS RICHARDS: Okay.
PN413
THE DEPUTY PRESIDENT: Bearing in mind that that identifies the four categories of hours.
PN414
MS RICHARDS: Yes. I take you to that. Okay. We would say that number (a), that's the total part time actual rostered hours.
PN415
THE DEPUTY PRESIDENT: Yes, and that's 28 in that week that you were taking me to, is it?
PN416
MS RICHARDS: No. You would need to look at the situation with Mr Hutchison. For example, if I take you to 9 March 2005.
PN417
THE DEPUTY PRESIDENT: Yes.
PN418
MS RICHARDS: That's one week when he's been doing - this particular employee, the majority is he's been doing full time work. So we would say that that figure of 29.75 would be included in the calculation for (a) in that particular week - - -
PN419
THE DEPUTY PRESIDENT: In that week, yes, yes.
PN420
MS RICHARDS: That particular week that employee did no overtime.
PN421
THE DEPUTY PRESIDENT: Yes. Then go to (b)?
PN422
MS RICHARDS: Then (b), an example of that would be, as I said, the first week of this particular 12 month period, 29 December 2004.
PN423
THE DEPUTY PRESIDENT: Yes.
PN424
MS RICHARDS: That figure. We substitute the figure of 42 for 28 because that is the average - sorry, actually, I'm getting a bit confused here. (b) is another - no, no, that's - can you just indicate to me what - can you just read out what point (b) says there, I don't actually have it?
PN425
THE DEPUTY PRESIDENT: Permanent part time overtime hours.
PN426
MS RICHARDS: Okay, all right. So that's a bit different to what - the key argument to that is a bit different to what I'd done for Mr Bates, that's why I'm getting confused. Okay. So the part time overtime hours, an example of where that would occur would be if you look at, if you go over the page and you look at the second last entry for Mr Hutchison, 14 December 2005?
PN427
THE DEPUTY PRESIDENT: Yes.
PN428
MS RICHARDS: He's working in part time work. He's done his rostered hours but he's also done overtime as well, eight hours. So we would say that those hours would be included in point (b).
PN429
THE DEPUTY PRESIDENT: And he did that as a part time employee?
PN430
MS RICHARDS: Yes.
PN431
THE DEPUTY PRESIDENT: Yes, all right. Now, (c)?
PN432
MS RICHARDS: Okay. Is (c) the total part time average rostered hours?
PN433
THE DEPUTY PRESIDENT: It is permanent part time hours on the roster at the time of the commencement on full time temporary relief work.
PN434
MS RICHARDS: Okay. That would be when I'm talking about, if I can take you back to the first entry of 29 December 2004, the 28 hours would be an example there because they're the part time rostered hours, the average, but that employee, because he was working in full time relief employment, had done the 42. So we don't use the 42. We use the figure of the 28.
PN435
THE DEPUTY PRESIDENT: Right. And (d)?
PN436
MS RICHARDS: And (d), now (d), can you just read out to me again what - - -
PN437
THE DEPUTY PRESIDENT: (d) is the non temporary relief full time hours.
PN438
MS RICHARDS: Okay. The way that was calculated, as I indicated, was we will be proposing a situation whereby you make an assumption, but over that 12 month period there was at least four vacant full time lines and that's what's been conceded by the company in Mr Ross' statement. I suppose if I could say the purpose of doing this averaging exercise is because we don't actually, the records aren't available. We don't know when particular employees were doing this work outside of the scope of relief employment. If you take that - - -
PN439
THE DEPUTY PRESIDENT: Yes. It might be quite problematic trying to assign relief hours to a certain place.
PN440
MS RICHARDS: Exactly. So what I've attempted to do was to come up with a simplistic calculation which equally attributes some hours to each permanent part time employee, and the basis for that is also that we had an indication from Mr Hutchison that it is permanent part time employees that do this work. They don't use the full timers because they cost too much and it would be covered by overtime, so we'd rely on that evidence for the basis to support our submission, that it is the permanent part timers who do this work, so that really those hours really need to be apportioned back to those permanent part timers.
PN441
So the way I have made that calculation was very simplistically, if we make an assumption that there is four vacant roster lines over a 12 month period, and the hours for a full timer would be 38 per week. If you times four by 38 you come up with a figure of 152 hours per week. Very simplistically you times that by 52 weeks in a year. That comes up with 7904 hours for the year. We would say there's currently 46 employees on part time employees on the establishment, but the evidence of Mr Ross is that 10 of those employees had just commenced their second year of employment. Hence, if we look at this 12 month period they probably would not have been eligible to undertake that work. So if you divide 7904, divided by 36 employees, that's where I came up with that figure of 219 hours and 55 minutes.
PN442
THE DEPUTY PRESIDENT: Yes, well, I think my question is that you were saying that the evidence suggests that the company has been applying the average hours approach?
PN443
MS RICHARDS: Yes. When I'm talking about that, I'm talking about, I think it is point (c) in your key, that the part time - - -
PN444
THE DEPUTY PRESIDENT: Yes, okay, all right. You're not saying the evidence reveals that (d) has been applied?
PN445
MS RICHARDS: No. My understanding in the way I think the evidence sits, is that there is - or it hasn't been disputed that there have been vacant full time lines on the establishment and we would say that it hasn't been disputed that permanent part time employees have been doing this work. We would say that neither the local agreement, nor the EBA provide for there to be an exclusion of those hours, hence those hours are encapsulated and we would say they'd been encapsulated in our draft order under point (i) because they're actual rostered hours, they're actually rostered and the part time employees do it.
PN446
So we would say moving forward, prospectively that would be encapsulated in (b)(i), but in terms of developing a set of principles or a decision to be able to determine whether a retrospective entitlement has arisen, we would say that the Commission needs to - we would be requesting that the Commission makes a determination based on the TWUs submissions that we're putting forward that figure as a suggestion because we believe that it's not open to the parties to be able to determine that evidence somewhere else, because that evidence is just not available as to who did it and what. So we can't apportion it to each individual employee. So that's what we'd be proposing to do.
PN447
THE DEPUTY PRESIDENT: All right. Then, I think up until very recently we've been at somewhat cross-purposes because I have been assuming that in the sense you dispute - now go back to the numbering system in the amended draft order, my assumption has been that the dispute is about the operation or the effect of (b)(iii). Whereas I think what you've just told me is in effect, the dispute is about (b)(i).
PN448
MS RICHARDS: Well, I think there's - - -
PN449
THE DEPUTY PRESIDENT: In that what you're saying is that they are rostered hours, they are part time employees, and therefore they fit within that category.
PN450
MS RICHARDS: I think really there is a definite dispute about (b)(iii). The company is saying that that facilitative agreement
applies to this situation and the TWU is saying that it does not, based on the reasons that I've outlined above. In relation to
point 1(b)(i), I don't think there's any dispute in moving forward with that, that those hours should be incorporated. I don't think
there's any
dispute - and Mr Smith can go to this and correct me if I'm wrong - that those hours have not been excluded, therefore they should
be considered. There may be a dispute about how many hours the parties apportion.
PN451
THE DEPUTY PRESIDENT: So perhaps then what you're saying is that, you would say average permanent part time hours on the roster includes all of the hours - I’m sorry, it includes non temporary relief full time hours?
PN452
MS RICHARDS: No, we would say non temporary relief hours comes under (b)(i) because if employees are doing that work they're not within the definition of a relief employee.
PN453
THE DEPUTY PRESIDENT: Right. Well, then I think I was right the first time, wasn't I?
PN454
MS RICHARDS: I think you might have been.
PN455
THE DEPUTY PRESIDENT: That your dispute is about (i), in essence, in relation to this particular employee, your dispute is actually about (i)?
PN456
MS RICHARDS: Look, it might come to light maybe perhaps if Mr Smith indicates his submissions. I'm pre-empting that there is a dispute about this figure of 217, there may not be, but there is definitely a clear dispute in terms of whether the facilitative provision applies and we believe that goes to point (iii), because if the Commission determines that facilitative provision does apply, then based on the terms of the facilitative provision and the argument the company is running, they are saying that effectively no hours while a permanent part time employee is engaged in relief employment under the definition of relief employment counts.
PN457
I apologise if I'm confusing you, your Honour. It's a very complex argument.
PN458
THE DEPUTY PRESIDENT: No, I understand, but I also think it's probably right. There's a little bit of shadow boxing here until Mr Smith - - -
PN459
MS RICHARDS: Maybe perhaps if Mr Smith can perhaps present his submissions, then I'm quite happy to address any further questions or clarifications.
PN460
THE DEPUTY PRESIDENT: Just before we do that, just in relation to the issue about the status of QF1.
PN461
MS RICHARDS: Yes.
PN462
THE DEPUTY PRESIDENT: It might depend in part whether clause 10 of the latest EBA is read broadly or narrowly.
PN463
MS RICHARDS: Yes.
PN464
THE DEPUTY PRESIDENT: One way to interpret that would be to say that the parties are able to agree arrangements in a sense from time to time, notwithstanding anything else contained in the agreement. Another way, the alternative way is to say, well, look, the agreement stands unless there was subsequently a facilitative provision agreed. Now, I'm not saying which of those two is right or whether there's any other one, but that would seem to me to be at least part of the issue that needs to be resolved here. Thank you. Mr Smith?
PN465
MR SMITH: Your Honour, I might just move through my proposed closing submission and hopefully as I move through it and the logic that I'd hope to do it with, I'll deal with some of the points the TWU raised and that they were discussing.
PN466
THE DEPUTY PRESIDENT: If not, you can be sure that I'll pull you up.
PN467
MR SMITH: Yes. It's by no means a straightforward set of facts. Your Honour, it's the company's primary submission that when arbitrating a dispute over the application of TWU EBA6 that the Commission, we respectfully suggest, should have regard to the relevant local facilitative arrangements that are in place, and indeed, have been put in place by the parties by agreement. Now, QF1 is such a relevant agreement and it has relevant application in the dispute in this matter, and properly applied, we say, to the circumstances of Mr Hutchison's employment as at 21 December 2005, being the anniversary date of his employment, that his hours would not have exceeded the relevant cap and his position would not convert to full time.
PN468
Your Honour, I've prepared a chronology of events which is based on the material relied upon by the parties and the Commission records, and it might just assist to work through the continuity of the various certified agreements and decisions.
PN469
THE DEPUTY PRESIDENT: Very well, thank you.
PN470
MR SMITH: I've provided a copy of this before the luncheon break to the TWU. Now, I might just walk your Honour through the chronology and then come back and deal with some of the detail, but effective 16 October 1996 Qantas Airways Limited Enterprise Agreement 3 commenced operation and I refer to that as EBA3, and it introduces part time employment provisions at Qantas Airways. 21 September 1998, there's a minor typo there, your Honour, apologies, that should read 1998, the Transport Workers' Union Qantas Airways Limited Enterprise Agreement 4 commenced operation, known as TWU EBA4.
PN471
I might add that TWU EBA4 is silent in relation to part time employment, but it contains a relevant facilitative provision. In February
2000 the parties into a written local agreement concerning part time employment and full time conversions at Adelaide Airport specifically,
and that document is marked QF1 in these proceedings. On 15 March 2001 her Honour, SDP Drake, hands down her decision, published
reasons in the Frittum & Minard v Qantas case. On
19 June 2001 the Full Bench hands down its decision following the appeal.
PN472
Now there'd be a new entry after that, your Honour, 12 December 2001, a further local agreement is entered in to. It relates to the Ansett collapse and that document is marked QF2.
PN473
THE DEPUTY PRESIDENT: My understanding is that it's a common position that that was a fixed term agreement which had a definite starting point and definite life. It might be relevant in historical context, but no one is suggesting it's currently relevant.
PN474
MR SMITH: No, your Honour, and certainly in our submission that agreement ceased operation on 31 December 2001. It had served its intended purpose which was to assist the parties through the managing of the influx of work from Ansett.
PN475
THE DEPUTY PRESIDENT: Yes. I only raised that because what it actually says is, continues in force until 31 December or such time that either party elects to rescind the agreement. I presume that's meant to mean within that period.
PN476
MR SMITH: Yes, prior to 31 December was how I read it.
PN477
THE DEPUTY PRESIDENT: Yes. My understanding is that's a common position, Ms Richards?
PN478
MS RICHARDS: Yes, your Honour.
PN479
THE DEPUTY PRESIDENT: Yes, all right, good, thank you.
PN480
MR SMITH: Now, your Honour, the next event, 1 July 2002, the Transport Workers' Union Qantas Airways Limited Enterprise Agreement 5 commenced operation, we refer to that as TWU EBA5. Now it is here in TWU EBA5 that the introduction of provisions concerning the transfer of permanent part time employees to full time relief employment are introduced and it is those provisions that introduce this concept in to the certified agreement about averaging of part time rosters to be had regard to for periods of time for which an employee acts up in a full time position.
PN481
Now, the next entries, your Honour, relate to Andrew Bates and the purpose of them being there has now evaporated as a result of the approach we took this morning.
PN482
THE DEPUTY PRESIDENT: Yes.
PN483
MR SMITH: On 13 October 2005, your Honour, Transport Workers' Union Qantas Airways Limited Enterprise Agreement 6, known as TWU
EBA6, commences and I'd insert a new entry there after that. On 23 December 2005 we have the anniversary of Glenn Hutchison's part
time employment at the company, relevantly being post the commencement of TWU EBA6. Your Honour will note that the TWU filed a section
170LW application. That was in relation to a dispute said to be over the application of TWU EBA6 on 13 December 2006, pre
Work Choices, so we don't have any issues arising with that.
PN484
What follows probably doesn't take us much further, your Honour. It's the various steps the parties have gone through to prepare for today's hearing. Now, your Honour, EBA3, if I can go back to the commencement of the chronology, EBA3 introduces part time employment, copy of EBA3 can be found at attachment 2.
PN485
THE DEPUTY PRESIDENT: Yes.
PN486
MR SMITH: Of the TWUs materials and it includes at appendix 4, some part time provisions that relate to Transport Workers' Union and the only point I seek to make, your Honour, is that EBA3 is silent on the coverage by part time employees of vacant full time lines or, indeed, of filling lines vacant due to full time employees being on long service leave, Workers' Comp, sick leave, any of those other matters. So EBA3 is silent.
PN487
Now, your Honour, if we go to EBA4, I apologise, I don't believe there's a copy of EBA4 in the materials before you and I don't have a spare, but the only point I want to make, and I don't think it's in dispute, is that EBA4 binds both the company and TWU that came into force on 21 September 1998 and it states, and I'll commence the quote:
PN488
This agreement shall be read in conjunction with the awards and agreements listed below. Where there is any inconsistency between this agreement and the awards and agreements listed below, this agreement shall prevail unless expressly stated in a clause to the contrary.
PN489
Then when one looks down at the agreements listed and awards, it includes Qantas Airways Limited Enterprise Agreement 3. Now, part (b) to TWU EBA5 is headed Enterprise Bargaining Provisions and it includes at paragraph (3) a facilitative provision. For your Honour's ease of reference, it's one paragraph, I may read that on to transcript as well. I commence the quote:
PN490
Facilitative Provisions. To meet the needs of the enterprise the employee may, with the agreement of the employee in the union as provided hereunder, work such employee at such times and under such conditions as may be mutually agreed upon, notwithstanding anything elsewhere contained in this award.
PN491
I might just stop the quote there.
PN492
Your Honour, the reference to the award, I would be suggesting, is a typographical error and that in fact should read agreement. The document read as a whole is referring to itself being a certified agreement. I don't think that's in dispute.
PN493
THE DEPUTY PRESIDENT: A reasonably common occurrence in my experience.
PN494
MR SMITH: Yes. So if I return to continuing the quote:
PN495
Provided that a copy of any agreement or amendment thereto shall be forwarded to the union not less than seven days prior to its proposed implementation. Should there be a failure to reach agreement, or in the event of any objection by the union, the right of any party to this award affected thereby is reserved to apply for a variation in relation thereto.
PN496
Now, with those industrial instruments providing the background, your Honour, in February 2000 QF1 was created. We say it's been made pursuant to TWU EBA4 as a valid facilitative agreement and I'd just to highlight a number of aspects of QF1. It states in the preamble, very clearly, that it's been made in accordance with clause 3 of Facilitative Provisions of TWU EBA4 and goes on that:
PN497
The union agrees in order to facilitate work place flexibility in relation to hours of work performed by permanent part time staff at Adelaide airport, the following conditions will apply.
PN498
And the last sentence is of some interest:
PN499
It is acknowledged that the guiding principles of this arrangement is to provide work place flexibility for staff at no additional cost to Qantas.
PN500
Then there's a series of general provisions. Paragraph (a) makes it clear that:
PN501
The agreement commences on 13 October 1999 and it says it will continue on in force until such time that either party or both of the parties elect to rescind the agreement.
PN502
Then it goes on to describe how this agreement can be rescinded and it must be by giving four weeks' notice of the intention to rescind and it must be in writing. Now, we would say in our respectful submission that that has not occurred, no party has given written notice to the other that they want this agreement to cease to operate or rescind.
PN503
In paragraph (b) of QF1 it states that:
PN504
This agreement will nullify any inconsistent entitlement the employee would have by virtue of any other provision of the award.-
PN505
being the underlying industry award, "industrial agreement" - now, notice the broadness of the language, your Honour. It's not limited to EBA4 or TWU EBA3, an industrial agreement or indeed, company policy. Paragraph (c) makes it clear that it only covers Adelaide Airport, permanent part time employees there and I think both the TWU and the company made that that is very much an Adelaide issue and would not be forming precedents for other ports.
PN506
Paragraph (d) makes it very clear that no oral explanation given by the company will affect the interpretation of the agreement. Now, we say that is a key provision given the traversing of commentary in transcripts. There's also, in paragraph (e), an indication of how disputes may be resolved and they go back to the enterprise agreement, TWU EBA4. Now, your Honour, set out on page 2 of QF1 are specific provisions. It's the first three paragraphs that are relevantly operable in the context of this matter.
PN507
We say that the effect of this agreement that where part time employees act up or cover full time employees who are on long term Workers' Compensation, long term sick leave or long service leave, that those hours do not count for the purposes of determining whether or not the annual hours' cap has been exceeded. We also acknowledge that in paragraph 2 that the hours worked by permanent part time employees, and you will see that it adds the words in brackets, "(including overtime)" to cover circumstances other than provided for in 3 below, being the absence of full time employees on long term Workers' Compensation, long term sick leave or long service leave, that those hours will count in calculating total hours' worked as provided in EBA3 above.
PN508
Now, your Honour, that would require some consequential amendments to the written submission that we provided to you. We now acknowledge that. We don't seek to further press the argument that overtime in that context is somehow excluded.
PN509
THE DEPUTY PRESIDENT: So, Mr Smith, does that mean - perhaps in a moment I will want you to run the application of your understanding of that against the hours that have been nominated for Mr Hutchison in TWU2, and you can do that now or later, but secondly, do I take it from what you've just said, that even if Mr Hutchison doesn't end up having a position where a conversion occurs, that there are others where that would be the case?
PN510
MR SMITH: Yes, we'd agree with that possibility, your Honour. That may emerge on the facts in the pool at the moment, although we do say that the business has moved to convert 10 positions, that is in the evidence of Adrian Ross, and that we would seek to have regard to those conversions as part of addressing any trigger to move forward. If I can continue to step through the chronology and I will of course deal with the specific question your Honour has raised.
PN511
THE DEPUTY PRESIDENT: Right.
PN512
MR SMITH: The next key item as we would have it in the chronology of events is 15 March 2001 which is the occasion of the publishing of SDP Drake's decision in Frittum & Minard. I'd like to provide your Honour a copy of that. Now, this we say is quite obviously the published reasons for decisions of the Commission having heard the evidence of the parties and determining the application before it. Now, your Honour, on page 2 of the decision - and sorry, I might just add, your Honour will recall that much of the debate in this case surrounded as to whether or not the hours exceeded as to whether the employees in fact were converted into full time employees, because they were claiming unfair dismissal.
PN513
THE DEPUTY PRESIDENT: Yes.
PN514
MR SMITH: Yes. And the matter was able to be dispensed with on the basis that, well, the position doesn't convert - sorry, the employee doesn't convert, the person does, so - sorry.
PN515
THE DEPUTY PRESIDENT: The person doesn't convert, it's the position that converts.
PN516
MR SMITH: Yes, and so for that reason the unfair dismissal claim had to fail. There was no termination of employment. But in going through it, some relevant aspects were dealt with and if I start at about point (2) of Drake's decision, second page, commence the quote, in addition to these arrangements, and then it reads:
PN517
The relevant employees voted to work extra hours to fill full time roster lines which were vacant as a result of the absence of permanent full time employees on sick leave ...(reads)... were rotated through this work.
PN518
Your Honour, I will take you to some other references which indicate that that agreement, as we understand it, was reached in about 1997 is what they're talking about there, well before the other - you know, the creation QF1. Now returning to the quote:
PN519
In determining this matter I made the following finding: the work performed by various permanent part time employees, including both applicants, in the vacant full time roster lines ...(reads)... and the applicants were aware of that agreement.
PN520
Your Honour, there is no mention of any averaging exercise anywhere in the published decision of the Commission.
PN521
On 19 June 2001, your Honour, the Full Bench of the Commission led by the President determined the appeal. I've got a copy of that decision as well.
PN522
THE DEPUTY PRESIDENT: Thank you.
PN523
MR SMITH: Your Honour, at paragraph 4, the Full Bench notes the findings of the Commission, commence the quote:
PN524
It was found by the Senior Deputy President, and not seriously disputed on appeal, that in about April 1997 ...(reads)... for the purpose of the relevant provision in appendix 4 of EBA3.
PN525
I end the quote there. Again, your Honour, there's nothing in the Full Bench decision that goes to any talk of the averaging of hours. There's nothing that goes to that in the enterprise agreement at that time, just as we noted on our first run through, the issues of averaging only emerged in TWU EBA5, which comes after the Frittum litigation, and we do not accept that there's anything that can be drawn to in the transcript that can have the effect of varying the proper application of QF1 on its face, which clearly states how the question of hours is to be approached.
PN526
It clearly states how the agreement may be terminated. It clearly states how it's to be read relative to any other award, industrial agreement or company policy, and clearly states that no oral explanation given by the company will affect the interpretation of the agreement. So when you're looking at QF1 we would say that the Commission should approach the interpretation in QF1, I think the submissions the TWU has put up on the proper interpretation of industrial instruments provides useful guidance and the natural and ordinary meaning of the words would prevail and this agreement would speak for itself in that regard.
PN527
Now, your Honour, during the course of the morning you asked me whether or not I thought we would be able to persuade you that QF1 survived the various permutations of the enterprise agreements, and if I can - as we move through the chronology I might try and tackle that issue. Attachment 3 to the TWU materials is TWU EBA5. It's a happily short agreement in the days, your Honour, where it was open to the parties to do what they have done at paragraph 3(b) where it states that:
PN528
This agreement shall be read in conjunction with the awards and agreements listed below. ...(reads)... unless expressly stated in a clause to the contrary.
PN529
Then it goes on to list them all and includes relevantly Qantas Enterprise Agreement 3 and TWU EBA4. Reading through the agreement you will see at paragraph (7) that the parties have amended TWU EBA3 in relation to the transfer of permanent part time employees to relief employment. There's two dot points there and the second dot point, being the first appearance of this concept, and I'll commence the quote:
PN530
The average permanent part time hours on the roster at the time of the engagement to relief employment will count as the rostered hours when applying the cap on permanent employment.
PN531
Paragraph 9, your Honour, is a consolidation of agreements clause. It represents the parties' best intentions. The parties agree to consolidate current conditions provided for under EBAs 1 to 5. Now, properly read, EBA4, the current conditions would include QF1 in our submission. It certainly wouldn't extinguish it, and "should be consolidated into plain English for use as a working document by managers and employees during the life of this agreement." I'm not too sure whether that ended up occurring, but the time we get to TWU EBA6 it does.
PN532
Clause 11 is the Facilitative Provisions clause and it appears to me to be in the same terms as the earlier Facilitative provision that I took your Honour to in EBA4. It's identical provision. It's got nothing in there about excluding any pre-existing or overriding pre-existing local agreements.
PN533
THE DEPUTY PRESIDENT: Mr Smith, you say that QF1 was in existence in the time of EBA5?
PN534
MR SMITH: Yes.
PN535
THE DEPUTY PRESIDENT: And, as I understand the argument you've just put, you say, look, the EBA5 is to be read in conjunction with the earlier agreements, including EBA3?
PN536
MR SMITH: Yes.
PN537
THE DEPUTY PRESIDENT: And you say the facilitative agreement was made as part of the EBA3 and therefore it should be understood that that included any facilitative agreement as well as the agreement itself?
PN538
MR SMITH: I do, your Honour, with only this other layer of detail, that the facilitative agreement was made pursuant to TWU EBA4.
PN539
THE DEPUTY PRESIDENT: Yes, yes, and you say that's reinforced by clause 9, consolidation of agreements?
PN540
MR SMITH: Yes.
PN541
THE DEPUTY PRESIDENT: Current conditions provided for under, the Commission presumably can take a wide view of that. I'm just making sure I've understood your position.
PN542
MR SMITH: Yes.
PN543
THE DEPUTY PRESIDENT: And then you say in relation to clause 7, given that that deals with the same subject matter, at least in part, as QF1.
PN544
MR SMITH: Yes.
PN545
THE DEPUTY PRESIDENT: How does that interaction work?
PN546
MR SMITH: Well, we would say that the local facilitative agreement operates and survives and prevails over paragraph 7 of TWU EBA5 and we say that, having regard to the general provisions on the face of QF1, which I've taken your Honour to, and also having regard to the consolidation of agreements, and I suppose we would, in clause 9, but we would also say this. That a facilitative agreement is a legitimate mechanism under the certified agreement which allows the parties at a local level to set up arrangements that best suit the local circumstances within the parameters of the national agreement.
PN547
It's clear, we would say, that Enterprise Agreement 5 intends to carry forward those underlying arrangements, current conditions and that there's nothing in here which would seek to, or that expressly washes away those local arrangements, which are properly made under prior certified agreements, and that indeed, a facilitative agreement by its very nature is going to be, in some respects, either inconsistent or at least provide more factual or more detail about how a provision is going to be applied in a particular context.
PN548
So in order to allow the facilitative provisions to operate and have work to do, the certified agreements have got to tolerate a level of detail and change to facilitative agreements, and we say that's the intention and that's what's happened.
PN549
THE DEPUTY PRESIDENT: I have no difficulty in general terms to the proposition you've just advanced, but it seems to me though that one way of viewing this would be to say, look, the facilitative provision got its life from EBA4 and if you're right about the fact that it's drawn forward by way of clause 3 of EBA5, that clause talks about, well, it's to be read in conjunction with, it does say, it talks about this agreement prevails, that is the new agreement, 5 prevails, unless expressly stated to the contrary.
PN550
So isn't the danger at least in your position that if that's the approach that the Commission follows, then don't I have to deal with the fact that clause 7 deals with the same issue in an inconsistent way?
PN551
MR SMITH: Well, we would say, no, your Honour, because it would defeat the purpose of the facilitative agreements reached by the parties. We would say it would be contrary to the intention displayed in paragraph 9 which the parties agree that current conditions, you know, clearly should continue to be consolidated, and we would say that such an approach also would be inconsistent with the carrying forward of an identical facilitative provision in paragraph 11.
PN552
We would say also that such an approach would fail to give any work to the express intention of the parties about how this agreement can be terminated.
PN553
THE DEPUTY PRESIDENT: It does get back tot eh point that I raised right at the end of Ms Richards' submissions, that is, it might depend what view you took about the facilitative provision in 11.
PN554
MR SMITH: Yes.
PN555
THE DEPUTY PRESIDENT: Whether that is only designed to allow subsequent facilitative arrangements or whether or not it's designed to allow and preserve existing, at the time of the agreement, existing facilitative arrangements.
PN556
MR SMITH: Yes. Your Honour, the next event we'd like to go to is
13 October 2005 which is TWU EBA6, it commences - it's attachment 4 in the TWU bundle of materials.
PN557
THE DEPUTY PRESIDENT: Yes.
PN558
MR SMITH: I think Ms Richards has taken you to the relevant provisions, paragraph 6.2 which talks about the relationship between industrial instruments.
PN559
THE DEPUTY PRESIDENT: But again subject to the view about what the facilitative provision in this case, clause 10, means, isn't that a further difficulty in relation to QF1, because the first time, at least the first time it uses the expression, supersedes and replaces, rather than read in conjunction with?
PN560
MR SMITH: Yes. It supersedes and replaces, because it's a consolidation of what went before.
PN561
THE DEPUTY PRESIDENT: Yes.
PN562
MR SMITH: So the parties have actually gone and done, you know, what was foreshadowed in the earlier agreement. That is, they've consolidated the one industrial instrument, the various - in one agreement, the various underlining industrial instruments. Your Honour, we would say that there's nothing in clause 10, Facilitative provisions, TWU EBA6, that rules out the possibility of existing facilitative agreements continuing to apply. It lacks a temporal aspect that's only prospective, would be another argument we would respectfully submit.
PN563
The language includes, you know, work such employees at such times and under such conditions as may be mutually agreed upon, notwithstanding anything elsewhere contained in this agreement. Well, I mean, QF1 fits that description. It's an agreement between the parties about how work is to be performed at such times and under certain conditions and it's mutually agreed. Now, I can probably leave the chronology at that point, your Honour, noting that Mr Glenn Hutchison's anniversary of his employment is 23 December 2005, so it places the crystallisation of his claim under TWU EBA6 and so it would properly characterise it as a dispute over the application of TWU EBA6 in our submissions.
PN564
Now, your Honour, I think that might start taking me towards the more ticklish issue of getting immersed in these numbers. Not being a mathematician I prefer to, in the first instance, approach it with concepts and what we would be saying about Mr Hutchison's employment is that we would apply QF1 to the considerations so that any hours that he worked covering full time employees who are on long term Workers' Compensation, long term sick leave or long service leave would not count for the purposes of the cap.
PN565
Now, we say on the evidence, as best I understand it, if we go to the schedule in attachment 1, and Mr Hutchison is the third entry.
PN566
THE DEPUTY PRESIDENT: Yes.
PN567
MR SMITH: That this record clearly indicates where he covered full time employees because the roster line is marked FT at the top. Now, we would say on the evidence that that relates to hours worked on long term Workers' Compensation, long term sick leave or long service leave for the most part. We recognise, I could sense Amy jumping out of her chair, we recognise that there are also a certain number, and we say the preferred balance of evidence is Mr Ross', which is that there are four vacant full time lines and that nothing in QF1, paragraph 3 would give the company any relief to say that those hours shouldn't be counted.
PN568
Now, Amy said on a number of occasions that the company is unable to unscramble the eggs as to identify who's worked which of those hours which were otherwise vacant full time lines. So we would accept that to resolve our dispute about the application in the agreement that some pragmatic averaging exercise may have to be entered into to get us over the hump. In doing that calculation we'd accept, okay, it's the four employees, four vacant lines times 38 hours per week, times 52 weeks a year gives you an annuated number of hours, so we've got this pool of hours. How should they be distributed?
PN569
Well, we would say that that relates to the 12 months leading up to the period you're doing the calculation, if you like, and we would say that those hours should be evenly shared across the entire part time work force and our preferred evidence is that that number would be 46, not the 36 which Amy raised. So I think we get as a rough, you know, round swing number, I think we get the 171 figure which is slightly lower than the other number which I think was 219 from memory. So what we would say - - -
PN570
THE DEPUTY PRESIDENT: Just applying first principles, why would you share it amongst, why would you spread the average over all of the employees including those, as I understand the composition, who weren't eligible to undertake the work?
PN571
MR SMITH: Well, I suppose the way I'm conceiving this is that all the pool of the part time employees from time to time had the potential and may well have covered some of that work. So therefore we can't unscramble it so we should just share it evenly amongst all of them.
PN572
THE DEPUTY PRESIDENT: Right, but my understanding was that only 36, as a general proposition, that only 36 were able to act up because they were in the first part of their employment.
PN573
MR SMITH: Right, okay. I suppose I'm looking at the statement of Adrian Ross where he talks about, in paragraph 12, that the company engages around 130 workers and that it comprises 46 part time employees and it would only be at some time after that which would be after we give effect to the 10 conversions, and it deals with that in paragraph 24 of his statement where the new composition of the work force would give rise to 36 part time employees which give a lower number.
PN574
So I suppose the way I was thinking about it was that during the 12 months leading up to 23 December 2005, being the anniversary of Glenn Hutchison's employment, there would have been approximately 46 part time employees as part of the establishment of the company.
PN575
THE DEPUTY PRESIDENT: Yes.
PN576
MR SMITH: Unless I'm missing something.
PN577
THE DEPUTY PRESIDENT: I think the lower divisor is not based on the exclusion of that 10, but based on those who were in their first year of employment at that time.
PN578
MS RICHARDS: That is correct, your Honour. The TWU submissions was if we go to the evidence presented by Mr Ross, when I asked him a question about whether there had been employees engaged in the business who had only just lapsed into their second year of service indicated that that was correct and that there was 10 employees. So they're the 10 that I'm referring to, not the 10 who were on Workers' Compensation.
PN579
THE DEPUTY PRESIDENT: And not the 10 that were subsequently converted to full time.
PN580
MS RICHARDS: Yes, and my understanding is that those 10 positions which Mr Smith has gone to and is indicating in his submissions, those actually haven't been converted yet. My understanding is that those positions have been advertised, we don't have substantial bodies in that. So we would argue that those conversions haven't yet occurred, but that will perhaps be dealt with further in, I suppose, the second part of this issue if we need to bring the matter back on again.
PN581
THE DEPUTY PRESIDENT: All right. So, Mr Smith, if that's the 10, they are talking about not included in the average?
PN582
MR SMITH: Yes. I suppose I'm - excuse me, your Honour - a bit confused about the 10. Is that the 10 who were covering the Workers' Comp lines or the 10 - - -
PN583
THE DEPUTY PRESIDENT: No, my understanding is it was 10 employees who were in their first year of employment and who as a result - and it's not my conclusions, I'm summarising my understanding - is that it was suggested that in the first year of employment they were not eligible to act up, to relieve, and therefore they were excluded.
PN584
MR SMITH: Thank you for that explanation. I'll just check my instructions.
PN585
THE DEPUTY PRESIDENT: Very well.
PN586
MR SMITH: I understand that's correct. I apologise for the confusion.
PN587
THE DEPUTY PRESIDENT: It just seemed to me if that is right, then - - -
PN588
MR SMITH: Yes, that drives you to the 46 number.
PN589
THE DEPUTY PRESIDENT: That's a 36 number.
PN590
MR SMITH: Sorry, the 36 number.
PN591
THE DEPUTY PRESIDENT: Yes, I think. Obviously what you're trying to do here is just assess an average and I think there's probably no completely correct way of doing it, but it's probably more correct to use those that were eligible to participate in the relief.
PN592
MR SMITH: Yes, okay, thank you, your Honour. So we would say that the correct approach to be followed, and I'm looking at attachment 1 for Mr Hutchison, so say for the entry of 5 January 2005 which is the second entry, that he is in a full time roster line. So those hours should not count by operation of QF1. The part time roster hours due to the operation of QF1 we would say are irrelevant, so they don't count, and we would say that the overtime hours similarly don't count. Indeed, I think that's conceded.
PN593
Now, we acknowledge that at the end you have to add on this averaging exercise at the end of the total calculation for the year. So you might go through that for each week and then at the end you would add this magic number because some of this full time work may have included vacant full time lines as opposed to covering people on long term Workers' Comp, long term sick leave, long term long service leave. That's how I'm conceiving it. Would it assist your Honour if I went to a part time month?
PN594
THE DEPUTY PRESIDENT: No. I think I understand but just as a matter of abundant caution, could you do that as well, because I am in a moment going to ask you to repeat this exercise by applying the agreement rather than QF1.
PN595
MR SMITH: All right. So if we just go across Hutchison's line and we come to the first part time clause and I think the first part
time roster line, and it's
9 March 2005.
PN596
THE DEPUTY PRESIDENT: Yes.
PN597
MR SMITH: His actual rostered hours at 29.75. So those hours would count, and on that particular week he hasn't worked any overtime hours, but had he done so, we would say that they count. Okay? I'm not getting kicked by anyone.
PN598
THE DEPUTY PRESIDENT: It's always a good sign.
PN599
MR SMITH: It's always a good sign. Now, your Honour has asked me to go through the same exercise, but this time apply TWU EBA6 pure.
PN600
THE DEPUTY PRESIDENT: Yes.
PN601
MR SMITH: Could I just have a moment to think about that?
PN602
THE DEPUTY PRESIDENT: Certainly.
PN603
MR SMITH: If you go to the first entry for Hutchison, being 29 December 2004, you would look at his actual rostered hours which are 42. You wouldn't count those because you're regarded as being in relief employment. So you'd turn to the roster, the part time rostered hours and you would credit him with the 28.
PN604
THE DEPUTY PRESIDENT: Right.
PN605
MR SMITH: My only hesitation is there might be some finessing around identifying groups at six weeks, but I don't now whether Amy is - sorry. Look, I don't see too much with that point now, but the only other thing I would note, with TWU EBA6 - sorry, with QF1, there's a reference to long term sick leave, long term - yes, what does long term mean?
PN606
THE DEPUTY PRESIDENT: Yes.
PN607
MR SMITH: It would be open to the Commission to read the documents together as a whole, you know, one reference where the parties have sought to deal with long term, they've identified it as six weeks. I think it doesn't arise for the Workers' Comp people. As I understand it some of them have been offered, you know, on light duties for an extended period of time, more than a year let alone six weeks.
PN608
THE DEPUTY PRESIDENT: Perhaps then if we stick with the ..... for the moment.
PN609
MR SMITH: Yes.
PN610
THE DEPUTY PRESIDENT: You'll appreciate that TWU2 seeks to also include non temporary relief full time hours. That is, as I understand it, where the part time employees act up but not within the confines of clause 18.9.2.
PN611
MR SMITH: Yes.
PN612
THE DEPUTY PRESIDENT: And that refers to annual leave, long service leave, periods of Workers' Compensation exceeding six weeks, that's probably what you were referring to.
PN613
MR SMITH: Yes.
PN614
THE DEPUTY PRESIDENT: Two or more rostered days off. Now, I only emphasise all that because of course there's very little, if any, evidence about some of those matters, and it might reveal that the particular example that we're working on may not reveal all the helpful permutations that could exist in relation to how the dispute should be resolved.
PN615
MR SMITH: Yes.
PN616
THE DEPUTY PRESIDENT: In any event, what do you say is the - do you say that if it's - I'm trying to use very neutral language here - it's a part time employee working full time hours other than in relation to the classes of relief in 18.9.2? How do you say those hours should be treated for the purposes of the cap?
PN617
MR SMITH: Look, your Honour appreciates it's not our primary submission.
PN618
THE DEPUTY PRESIDENT: I understand, certainly.
PN619
MR SMITH: And you're testing me, your Honour. We would say that the example you're given could not be characterised as relief employment under TWU EBA6 so you would then have to revert back to the terms of 18.5.2 and it talks about if the hours worked are exceeded, the position converts to full time. So it just talks about hours worked. I'm thinking, and I don't know whether I'll be in trouble when I return to Sydney head office, that those hours would be counted - - -
PN620
THE DEPUTY PRESIDENT: I'm certainly not trying to trap you or obviously I've put you on the spot with the variations here, variations on a theme.
PN621
MR SMITH: You have, yes.
PN622
THE DEPUTY PRESIDENT: But ultimately I need to decide the whole matter.
PN623
MR SMITH: Look, I would have thought that those hours would be counted for the purposes of the cap. It seems to be the natural reading of the words to me, in my opinion, your Honour, standing here today.
PN624
THE DEPUTY PRESIDENT: Because you see if that's right, then your dispute may actually be, does QF1 apply?
PN625
MR SMITH: Yes.
PN626
THE DEPUTY PRESIDENT: Because as I've run through the respective interpretations of both parties it seems to me that give or take some issues around the margins, there is not a lot of difference about how EBA6 applies. There's not a great deal of difference about how QF1 applies, and I will have to think about that a little further, but the difference is effectively which rules should be applicable here.
PN627
MR SMITH: Yes. I think that would be a fair summary, your Honour, and I think it's why the parties have so usefully divided the case into first stage and second stage, because we need to digest that and understand what it means first.
PN628
THE DEPUTY PRESIDENT: Yes, because look, I suspect that as the dispute has evolved and the parties have researched their positions, in effect, it's a completely different characterisation than when it was lodged, as documents and approaches have come out. That doesn't mean it's not helpful, in fact, I think it is, but it does require the Commission to take a slightly different perspective than what would have been the situation if I were to determine the dispute, even as characterised in your original written submissions, of both parties.
PN629
MR SMITH: Yes. Your Honour, I think I would only have a number of additional short submissions. Your Honour, if I could turn to the TWUs submissions, written submissions, at the commencement of their bundle of materials, the original ones.
PN630
THE DEPUTY PRESIDENT: Yes.
PN631
MR SMITH: And if I could go to paragraph 10.
PN632
THE DEPUTY PRESIDENT: Yes.
PN633
MR SMITH: The TWU acknowledges that EBA6 effectively ensures that all the existing entitlements established in earlier enterprise agreements are maintained. At paragraph 36, your Honour, the TWU states:
PN634
The TWU submits that if it was the intention of the parties to exclude either overtime or any hours worked whilst in full time relief employment or both that would have been clearly stated in EBA6.
PN635
It's not been. Well, we would say it is clearly stated in the local agreement.
PN636
Paragraph (b)(vii):
PN637
To advance Qantas' interpretation the Commission would have to read additional words into clauses which are clearly absent.
PN638
We say that's not necessary. You just simply need to apply the facilitative provisions properly. I only have a number of other short submissions, your Honour. If I could turn to the additional submissions of the TWU.
PN639
THE DEPUTY PRESIDENT: Yes.
PN640
MR SMITH: Paragraph 14, the TWU makes some observations there. Look, in fairness to the TWU we were provided with a copy of the local agreement after they'd prepared these submissions, but just to point out to your Honour, the TWU asserts that clause 10 of EBA6 allows terms of the agreement to be varied, that the agreement the employees of Qantas and TWU provided a copy of the agreement is forwarded to the union prior to implementation. No such agreement has been negotiated or reached. We would say that was wrong. There is a local agreement that was reached that complied with existing facilitative provisions to be carried forward by EBA6.
PN641
Paragraph 23, the TWU asserts that even if there was some such agreement in place that EBA5 expressly overrode that supposed local unregistered and undocumented agreement made between the parties which Qantas is unable to provide. We say our case has improved considerably since that submission was put together. There is indeed a documented agreement. It's a local facilitative agreement. It's terminable on written notice and no oral explanation is to vary it. That's its express terms.
PN642
Amy asserted that the evidence of Wayne Coventry was the business will always apply an averaging process in calculating what to do with the hours when a part time employee occupied a full time position. I think the evidence was more equivocal, that that is that whilst there may have been a collation of that material, there was never any consistent application of that as a prevailing rule to the work force. Indeed, I'd suggest if it had have been so, we wouldn't be here today with the litigation that we've got on. So I make that observation.
PN643
So in terms of asserting established custom and practice at Adelaide Airport, we'd be saying that given that we're here, you know, potentially looking to resist a series of conversions that for a range of reasons, that that's consistent with our characterisation of the custom and practice which is the ongoing application of QF1 which clearly excludes hours which would limit the potential of part time conversions to full time. Your Honour, unless there's any questions, I think that concludes our company's submissions.
PN644
THE DEPUTY PRESIDENT: Mr Smith, thank you. Ms Richards?
PN645
MS RICHARDS: Thank you, your Honour. There's just a few points that I'd like to address and then I might hand it over to Mr McIntosh for the South Australian branch to deal with one issue specifically. I'd just like to perhaps indicate that the TWU disputes the statement made by Mr Smith earlier that the concept of these averaging hours being included in any calculation of the cap on hours was first introduced in EBA5. We would say that that's clearly incorrect. By Mr Smith's chronology of events it indicates that QF2, that second Ansett local agreement was entered into prior to EBA5. We would say that there is actually evidence that that concept was introduced prior to EBA5 and specifically at Adelaide Airport.
PN646
The other point I wanted to deal with was Mr Smith's submissions in relation to the decision in the initial Frittum & Minard v Qantas decision by SDP Drake. He went into some lengthy submissions about the decision which her Honour made in that case and indicated or pointed you in the appeal decision to point 4 indicating that Senior Deputy President - and it was in - found that that agreement applied and it was not just seriously disputed on appeal. If you looked at point 7 in those reasons for decision, it clearly indicates there at point 7 that the applicant for the TWU, Mr Duffin, submitted that the Senior Deputy President properly construed the relevant provision of EBA3, but fell into error in concluding that the provision could be read down or varied by reference to a subsequent unregistered agreement or reliance on the party's subsequent conduct so as to deprive the employees of the benefit of the provision.
PN647
I've mentioned this in my submissions, but perhaps just to reiterate, we would submit that the findings of SDP Drake were to be relevantly disturbed on appeal because they were considered by the Full Bench in this respect to be irrelevant in relation to ultimate finding made. If you go further, down in the body of paragraph 7 - I'm just trying to find it. Anyway, notwithstanding we would argue that the decision handed down in the appeal decision did not confirm SDP Drake's findings in relation to the application about local agreement. We would say that the decision turned on a different set of facts and the Full Bench decided that that issue wasn't relevant. So that first instance decision has not subsequently been endorsed at a Full Bench level.
PN648
THE DEPUTY PRESIDENT: Just before you hand over to Mr McIntosh, and this may be the matter that Mr McIntosh wants to deal with, but I'd like to explore your position on QF1 a little further, in light of the significance that it now has developed.
PN649
MS RICHARDS: Certainly, your Honour, Mr McIntosh will be dealing with that specifically.
PN650
THE DEPUTY PRESIDENT: Very well. Mr McIntosh?
PN651
MR McINTOSH: Thank you, your Honour. Just in opening can I just say that this matter relies on the jurisdiction of EBA6 and that hasn't been disputed, and in reference to our submissions that Mr Smith referred to in 9 and 10, it says the 2005 EBA4 attachment 4 is negotiated and certified - 6, sorry - was negotiated and certified EBA6, consolidated and replace Qantas Airways Enterprise Agreement 1 to 5 and incorporated the terms of airline operations, Transport Workers' Award 1998.
PN652
EBA6 has a period of operation from 13 October to 1 July 2008. At 10 it says, and I quote:
PN653
EBA6 effectively ensures that all of the existing entitlements established in earlier enterprise agreements are maintained. These entitlements include the cap on BPT hours, the ability (2) for BPT employees to transfer to full time relief employment and what hours should count as rostered hours when on relief employment.
PN654
Your Honour, clearly in EBA6 at 18.6.1 it reads:
PN655
A permanent part time employee may agree to be transferred full time relief employment for a maximum period of 52 weeks, that that employee returns to that part time role at the conclusion of the relief position.
PN656
At 18.6.2:
PN657
The average permanent part time hours on the roster at the time of the engagement to relief employment will count as the rostered hours when applying the cap on permanent employment.
PN658
And if I could just refer you to the specific provisions of QF1, your Honour. Where total hours worked annually by permanent part time employees at Adelaide Airport you see 1560 in the first year and 1410 in the second year thereafter, and some of these hours were to cover full time employees as described in 3 below, it would not result in the automatic conversion of the permanent part time position to full time status as provided for in appendix 4, point 3 of the Qantas Airways Limited Enterprise Agreement, 3.
PN659
And if I take you to the EBA, EBA6, and if we go to clause 6, your Honour, relationship between industrial instruments, 6.1, this is a comprehensive agreement that replaces all other awards that would otherwise apply except for, and so there's some exclusions, except for the Airline Operations Transport Workers' Long Service Leave Award 1999, "to the extent that there is any consistency, this agreement will apply."
PN660
Also if you go on to clause 6.2:
PN661
The agreement consolidates and consequently supersedes and replaces the agreements listed below with effect from the date of certification.
PN662
And all the agreements up to 1 to 5 have been listed there, your Honour, which I would submit to you that QF1 doesn't apply. Therefore the provisions of EBA6 does apply, and as I said earlier, it's the jurisdiction of that EBA that allows us to make an application under 160LW for this matter to be heard.
PN663
So we would submit that that is an obsolete document and if it was intended that any of those facilitative provisions were needed they would have obviously been inserted into EBA6. They haven't. They've been excluded and there is a facilitative provision clause in EBA6 that if Qantas or the TWU wanted to negotiate in an agreement under that provision, it could have been done at a later date, but - - -
PN664
THE DEPUTY PRESIDENT: Mr McIntosh, just on that, do I take it that the TWUs position is that if QF1 were entered into today, that that would be a facilitative provision, is it an agreement capable of operating in the way that it purports to do, that is, to vary the effect of the provisions of the certified agreement?
PN665
MR McINTOSH: Yes, your Honour. That facilitative provision was agreed to some time in 1999 by a vote by our members on the basis of the opportunity for part timers to do this work. Now, the reason why that facilitative provision hasn't been introduced in EBA6 is because there's no requirement for it and - - -
PN666
THE DEPUTY PRESIDENT: All right. Putting that aside, but you say that the facilitative provision should be read broadly in terms of any future facilitative provision so that it could embrace an inconsistently operating local arrangement, when that's the point I'm trying to make clear.
PN667
MS RICHARDS: I think the TWUs submission is that there is the ability under clause 10 of EBA6 for the parties to enter into facilitative provisions which would have the effect of bearing the terms of EBA6 respectively, but we do believe that there is that ability.
PN668
THE DEPUTY PRESIDENT: Yes. You'll appreciate, I've raised that as a matter of abundant caution because it was one of the issues which the representative of the two applicants in the unfair dismissal matter actually raised the inference, at least, that a local agreement couldn't operate that way without there being application to vary the principle agreement under the Workplace Relations Act. Now, I didn't understand that to be your position, but I just wanted to clear that up.
PN669
MS RICHARDS: No, and that's clearly reflected in our submissions. We submit prior to actually seeing this local agreement, there are two ways that the parties can vary EBA6. One would be by a variation of the substantive terms of the agreement, the old 170MD, or the other one would be to enter into an agreement which is made under clause 10 of the facilitative provisions.
PN670
THE DEPUTY PRESIDENT: Very well, thank you.
PN671
MR McINTOSH: I know, your Honour, you wanted to put us on a spot in respect to QF1, and that' the position of the TWU at this stage, that it doesn't apply and should be disregarded in respect to any conclusions you make from the submissions.
PN672
THE DEPUTY PRESIDENT: All right. But if it does apply, do you accept that it would apply in the way in which Mr Smith has outlined?
PN673
MR McINTOSH: No, we don't concede that. Obviously the evidence that's been put today establishes that custom and practice indicated, and evidence from the Minard & Frittum matters that have made it quite conclusive that the average hours of the part time roster when those people were put up on to full time has been considered in the cap. That has operated since 1999 and that was in evidence from Mr Coventry.
PN674
THE DEPUTY PRESIDENT: With respect isn't that suggestion that QF1, if you're right about that, that QF1 hasn't been applied? It doesn't necessarily mean that that's the way that QF1 if applied should operate.
PN675
MR McINTOSH: Well, yes, it probably didn't apply. Maybe it wasn't ever used, but - - -
PN676
THE DEPUTY PRESIDENT: So again, just so that I have covered all the bases, if QF1 - I'll ask you to assume for the purposes of the question that QF1 is applicable and that it should be applied on its face, would you take issue with the way Mr Smith applied that in relation to the example employee?
PN677
MR McINTOSH: No, we wouldn't. We would still take the position that Ms Richards has put in respect to the average hours that were on a permanent part time roster, had to be considered to a cap, and those people were promoted to full time relief employment.
PN678
THE DEPUTY PRESIDENT: By view of custom and practice though, not QF1?
PN679
MR McINTOSH: Not QF1.
PN680
THE DEPUTY PRESIDENT: No. So if QF1 did apply?
PN681
MR McINTOSH: Well, we're submitting that it doesn't.
PN682
THE DEPUTY PRESIDENT: I understand that completely. But in the event that it does apply, I'm giving you an opportunity to be heard as to how it might, how it should have been applied and I understand what you say. You say it hasn't been applied because of custom and practice, but I'd also like to give you an opportunity to take issue with what Mr Smith said would be the natural application of QF1 if it's found to apply.
PN683
MR McINTOSH: Well - - -
PN684
MS RICHARDS: I think we would just rely on custom and practice to guide the Commission in terms of how EBA1 would apply. The other
thing to
consider - sorry, QF1, sorry.
PN685
THE DEPUTY PRESIDENT: Right.
PN686
MS RICHARDS: Sorry, QF1 would apply. The other thing to consider is, and perhaps if you - or you haven't yet, you'll examine the transcript in the Frittum & Minard case. It actually goes into a discussion about why this agreement was entered into and my understanding of the submissions and the history of the matter was that there was an agreement between the parties that permanent part time employees would do this work as opposed to casual workers or other workers.
PN687
The benefit for the employees would be that they would be able to receive more remuneration than perhaps what they would have received beforehand because there's a cap on hours of 30 hours and the benefit for the company would be that they wouldn't be paying casual loadings or overtime to full timers who would otherwise may perhaps do this work.
PN688
The other thing to consider is that we would submit that there was an agreement that if that was the effective trade-off, but that the average part time hours should count because an employee would have been doing that work if they hadn't have been working up. So in effect if we take the company's submissions that by working up those hours don't count, you're effectively penalising or - that's probably perhaps too harsh a word - but effectively would end up with a situation, if any employee was eager and flexible enough to accommodate the needs of the business in working up in these positions, then he might be himself doing himself out of the ability to trigger.
PN689
So in effect if that clause was interpreted on the basis of Mr Smith's assertions, then there would be an incentive for part time employees not to take up this work and that would cause a problem for the business because, as the company's witness has indicated, Mr Ross, that permanent part time employees do do this work, and they do it because it's cheaper, so if you were in a situation where if you did read this clause, that there would be a disincentive for part time employees to actually work up in full time work, that would also be a disincentive for the company because if they don't get enough people to choose to act up in that work, and they're going to have to use full timers on overtime or they're going to have use casuals or contractors at a higher rate of pay.
PN690
So we would say that that's influential in making a decision based on the TWUs submissions, that really those average hours have to count because otherwise it would be a disincentive to both parties and we don't think that that's something that would have occurred, or would have been agreed at locally.
PN691
MR McINTOSH: Your Honour, just one other point in respect to answering your question is that if the custom and practice hadn't been practical over that period of time, it wouldn't have been included in EBA5 or 6. EBA5 and 6 addressed what has been happening in custom and practice for a number of years. So we would submit that that is enough evidence to indicate that the company who has been a party to EBA6 and 5 have accepted the custom and practice of the average hours, otherwise it would never have been included in both those documents. If the Commission pleases.
PN692
THE DEPUTY PRESIDENT: Thank you. Anything arising?
PN693
MR SMITH: Just very briefly, your Honour. In relation to the last point that Amy had made, we would say that her Honour, SDP Drake, identified that the motivation for the employees to enter into the agreement, which they did, was to contain the work disappearing away to casual employees. So you know, that was the motivation as we saw it on the work force side of it, that was attracted the bargain to enter.
PN694
Your Honour, Amy also took you to paragraph 7 of the Full Bench decision in the Frittum case and the first sentence there reads that, Mr Duffin who appeared on behalf of the two employees on appeal submitted that the Senior Deputy President properly construed the relevant provision of EBA3, but fell into error concluding that the provisions should be read down or varied by reference to a subsequent unregistered agreement or reliance on the parties' subsequent conduct so as to deprive the employees of the benefit of the provision.
PN695
Now, it would seem to us that the finding there of the Full Bench is that Mr Duffin has distanced himself and the TWU from any arrangements entered into outside of the EBA at all, which is a different characterisation - - -
PN696
THE DEPUTY PRESIDENT: It's certainly different and that's why I confirmed the TWUs position.
PN697
MR SMITH: Yes, and that leads us, you know, as we said in our primary submissions, to the findings of the member in the first instance, and the findings of the Commission on appeal as opposed to trying to glean through the transcript to find some alleged agreement or established custom and practice, and, your Honour, the only other thought I would perhaps leave the Commission with today is that if QF1 is held not to apply due to the operation of TWU EBA6, that that will create some arresting circumstances in situations across ports outside of Adelaide for the industrial parties to contemplate, but I suppose I just do that by way of observation as opposed to any, you know, implication for your Honour's deliberations.
PN698
THE DEPUTY PRESIDENT: I can understand this will probably be both national parties at least to be much more comfortable if the Commission didn't have to deal with the issue, but I think all the parties now understand that in the end it is - it's not the only issue, but it's become the critical issue that will have to be determined in relation to this matter.
PN699
MR SMITH: Yes. So it becomes an issue of some significant industrial import, you know, nationally for the parties.
PN700
THE DEPUTY PRESIDENT: I understand, I understand. Anything further?
PN701
MS RICHARDS: Nothing further, your Honour.
PN702
THE DEPUTY PRESIDENT: All right. Well, look, I think, Ms Richards, you promised at some stage this morning to supply an amended order, just to pick, up the various permutations that we went through.
PN703
MS RICHARDS: Apologies, your Honour, I haven't had access - - -
PN704
THE DEPUTY PRESIDENT: No, no, I'm just indicating that if you could subsequently do that, that would be appreciated.
PN705
MS RICHARDS: We'll provide that to your chambers when I get back to Melbourne.
PN706
THE DEPUTY PRESIDENT: That's fine.
PN707
MR SMITH: And, your Honour, could I also suggest that perhaps if the TWU could collate into a typed document the hours that I think
went up and was
marked - - -
PN708
THE DEPUTY PRESIDENT: TWU2.
PN709
MS RICHARDS: We can do that.
PN710
MR SMITH: TWU2, that might assist and we'd all be looking at the same typed document.
PN711
THE DEPUTY PRESIDENT: Very well.
PN712
MR SMITH: Yes, thank you. Thank you for your patience today, your Honour.
PN713
THE DEPUTY PRESIDENT: Not at all. I must say firstly that subject only to the receipt of that material from the TWU I propose to reserve my decision in the matter. Secondly, I have appreciated the very constructive contributions that have been made by all representatives today. Thirdly, in reserving the decision, I indicate that I'm a conscious of the fact that this is an issue that has been a matter between the parties for some time. I also appreciate that the determination of this particular aspect is only part of the resolution of the whole matter and in that context I propose to attempt to give you a decision in writing at the earliest opportunity. The Commission is adjourned.
<ADJOURNED INDEFINITELY [3.35PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #TWU1 BUNDLE OF DOCUMENTS PN22
EXHIBIT #QF1 2000 AGREEMENT BETWEEN QANTAS AND TWU SOUTH AUSTRALIA/NORTHERN TERRITORY BRANCH PN66
CRAIG MOIR, AFFIRMED PN106
EXAMINATION-IN-CHIEF BY MS RICHARDS PN106
CROSS-EXAMINATION BY MR SMITH PN118
EXHIBIT #QF2 QANTAS AIRWAYS TWU SOUTH AUSTRALIA/NORTHERN TERRITORY BRANCH AGREEMENT DECEMBER 2001 PN149
RE-EXAMINATION BY MS RICHARDS PN155
THE WITNESS WITHDREW PN162
WAYNE COVENTRY, AFFIRMED PN165
EXAMINATION-IN-CHIEF BY MS RICHARDS PN165
CROSS-EXAMINATION BY MR SMITH PN187
RE-EXAMINATION BY MS RICHARDS PN212
FURTHER CROSS-EXAMINATION BY MR SMITH PN227
FURTHER RE-EXAMINATION BY MS RICHARDS PN242
THE WITNESS WITHDREW PN281
ADRIAN ROSS, SWORN PN288
EXAMINATION-IN-CHIEF BY MR SMITH PN288
EXHIBIT #QF3 STATEMENT OF ADRIAN ROSS PN297
CROSS-EXAMINATION BY MS RICHARDS PN298
RE-EXAMINATION BY MR SMITH PN324
FURTHER CROSS-EXAMINATION BY MS RICHARDS PN327
FURTHER RE-EXAMINATION BY MR SMITH PN330
FURTHER CROSS-EXAMINATION BY MS RICHARDS PN333
THE WITNESS WITHDREW PN340
EXHIBIT #QF4 OUTLINE OF QANTAS SUBMISSIONS DATED 13/04/2006 PN343
EXHIBIT #TWU2 SUMMARY OF FIGURES RE GLENN HUTCHISON PN365
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