C2006/2792, Transcript of Proceedings [2006] AIRCTrans 918 (31 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15421-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2792

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
QANTAS AIRWAYS LIMITED
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2792)

MELBOURNE

11.37AM, TUESDAY, 18 JULY 2006

PN1

MR V JOSE: I appear on behalf of the AMWU, with me MR P PRITCHARD, MR I STEWARD and MR I JOHNSON, who are AMWU delegates employed by Qantas.

PN2

MR P SMITH: I appear for Qantas Airways Limited, with me
MS A HOWIESON, MS K NUTTALL and MR D VICKERY from the business.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, what's it all about, please, more than the notification tells me?

PN4

MR JOSE: Yes, your Honour, the issues in relation to advice that I received recently that Qantas were planning to either discipline employees or members of the AMWU to the extent where they would either be given some sort of formal disciplinary action as part of a drug and alcohol training program that Qantas has in place, there was also some suggestion, Commissioner, through some correspondence that we've had with Qantas that Qantas were considering docking employees up to four hours, of the view that what they were doing was classed as unprotected industrial action.

PN5

In essence, your Honour, the issue revolves around a current training program that Qantas has introduced in relation to Qantas' own alcohol and other drugs policy. Your Honour, this matter goes back a number of years. In mid to late 2003 Qantas announced that they were going to introduce a drug and alcohol policy into its business. The unions, through the ACTU, initiated some discussions with Qantas to try and come up with an agreed policy to implement which would cover all employees. To cut a long story short, your Honour, there was an in general understanding reached in relation to testing where there's been an accident or an incident or show cause which means where somebody is clearly under the influence of some substance.

PN6

Qantas had attempted to also introduce a random testing process which the unions had objected to and continued to object to. Your Honour, the problem that we currently have at the moment is whilst Qantas has not conducted random drug testing, it's training program does touch on the aspect of random drug testing or alcohol testing. We have maintained the view that we obviously don't have agreement on the random aspect of the training and the policy, and having said that, as I understand it, after some clarification with Mr Richard Watts from the ACTU, whilst there is a general understanding about the nature of the testing in relation to accident/incident based, or where there has been a show cause proven, there is clearly no agreement reached on the random aspects and there was a meeting, I think, conducted a number of weeks ago between the ACTU, the unions and Qantas to try and resolve that and that was unsuccessful.

PN7

Your Honour, the AMWU has recommended to its members to not participate in the training whilst Qantas maintain an element of the random testing as part of their policy and as part of their training. Most of our members have made a conscientious decision to participate in the training regardless. There is still an element of our members who will not participate in that training whilst the company is adamant that it must touch on the random aspect, and that's basically where we're at.

PN8

The company is of the view that it is the company's right to instruct these people to participate in the training. We say that on the basis there is no agreement, that there is no lawful right and we have asked Qantas to provide us some evidence as to where they believe the lawful right comes from. We've asked them through correspondence whether it's some sort of health and safety regulation, whether it's through some Federal regulatory body, whether it's through some other legislative type arrangement and we're yet to see that, and it got to the stage where a few weeks ago Qantas, as I understand it, has taken that next step and was going around through it's middle management advising people that if they refused to participate in the training, that they would be dealt with through the disciplinary process.

PN9

Your Honour, we have proposed to Qantas through a discussion I had with a Mr James Morley, who is part of the HR group within Qantas, that Qantas separate the random aspects out of the training policy and that would enable us to obviously feel a little bit more comfortable about the way things are going and therefore we believe that our outstanding members who haven't participated in the training, or those that are outstanding would participate. Mr Morley indicated to me that that was not an acceptable proposition.

PN10

Qantas' view in relation to the random aspect of the policy is that whilst they acknowledge that there is a dispute in relation to the random aspects, the only position that they've put to the union is that once they decide to introduce that part of the policy, they will consult. No discussion about agreement, no suggestion that, you know, there'll be an attempt to try and come up with a mutually agreed outcome. It'll be they'll consult with us and then they'll introduce random aspect.

PN11

Now, the difficult we have with that, your Honour, is that we are currently having some disputation with Qantas about the definition of consultation over some other matters. Our view and our interpretation of Qantas' way of dealing with consultation is that they'll just tell us and it's not about some open and frank discussions and trying to come up with a mutually acceptable way. So in respect to the drug and alcohol policy, our gut feeling is that when Qantas talk about consulting, it'll either be a bit of correspondence or a phone call to say, "As of this date, we're going to introduce the random aspect of the training", and we're not accepting that, and that's basically where we're at.

PN12

So in essence, your Honour, our whole argument at this point is about whether Qantas have the lawful right to instruct these people to do the training and if they don't, does Qantas have the lawful right to initiate a disciplinary action, and we say no. If your Honour pleases.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. I'll see what Qantas has to say about it. Mr Smith?

PN14

MR SMITH: Yes, thank you, your Honour. It may assist if I just walk through briefly the background to this matter and some of the history between Qantas and the airline unions in relation to drug and other alcohol policy and testing. It is indicated on behalf of the AMWU, and what we would say was following an extended period of consultation with the union movement, Qantas introduced its drug and alcohol policy. That followed a series of proceedings with his Honour, Senior Deputy President Watson in this Commission where the airline unions were represented by the ACTU and by November 10, the negotiations had progressed so far that the ACTU was able to indicate that they did not oppose the company's policy in relation to show cause and accident and incident based - - -

PN15

THE SENIOR DEPUTY PRESIDENT: When was that?

PN16

MR SMITH: 10 November.

PN17

THE SENIOR DEPUTY PRESIDENT: Of which year?

PN18

MR SMITH: 2003.

PN19

THE SENIOR DEPUTY PRESIDENT: The ACTU didn't oppose it, yes.

PN20

MR SMITH: Yes, and that was recorded in Commission transcript before his Honour, Senior Deputy President Watson.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR SMITH: The ACTU also indicated that they continued to have reservations about random alcohol and other drug testing. What's occurred since
November 2003, your Honour, is that the company has sought to implement its policy and has conducted an extensive training program across the Qantas group and there's been a very high participation rate in that training. I'm advised that up to 98 per cent of Qantas employees have completed the training, including in maintenance areas.

PN23

Your Honour, the training includes a policy overview. I'm told it goes for approximately one hour. It's conducted during ordinary paid hours at work and there's also a facility for the training to be done online. The key aspect of the policy and what it's about is that Qantas maintains a zero blood alcohol level and drug free policy for all employees, including contractors, whilst at work or on duty.

PN24

THE SENIOR DEPUTY PRESIDENT: Is that for all employees of Qantas?

PN25

MR SMITH: Yes, it is. Qantas provides a comprehensive education program, health and human resources support to the policy, and Qantas says that all employees are encouraged to seek assistance if they believe that they are under the influence of drugs or alcohol of any kind. Now, the emphasis in the policy, as we would have it, is that Qantas is looking to achieve an alcohol and other drug free workplace. The policy has a strong educative component to it. Much of the information in the training session, which up to 98 per cent of Qantas employees have done, have completed, deals with explanations of particular drugs and their impact on individuals. The policy is supportive of employees and has a rehabilitation element as well.

PN26

Now, the policy does include some reference to random testing. That's yet to be implemented. No specific time has been stipulated by the company. There are discussions which remain on foot with the ACTU in relation to the company acting upon its policy in relation to random testing and the company has indicated that it will consult with the ACTU in relation to any implementation of random testing prior to doing so.

PN27

One important feature, and your Honour may already be aware of this from newspaper reports, but the Australian government has indicated an intention to mandate in the aviation industry random alcohol and other drug testing. Regulations are yet to be circulated to industry stakeholders for potential discussion before being issued, but the business is following that process with some interest and has indicated to the ACTU that once proposed regulations are available that we would discuss that with them.

PN28

There's been, also in discussions with the ACTU, an indication that if the move by the government to publish regulations to mandate random testing is delayed for an extended period, whatever time that may be, then it may come to pass that the company will need to move on random testing prior to the regulations. But we haven't reached that point yet, and if we did reach that point we've indicated to the ACTU that we would indeed consult with them about that before implementing that change.

PN29

Now, your Honour, the policy otherwise dealing with show cause and incident and accident based drug and alcohol testing is implemented and acted upon by the business and from time to time Qantas employees do participate in testing as a result of that policy in relation to those aspects of it. What the company has also said in relation to the random testing component, is that attendance at the training session in relation to the AMWU employees, won't regarded as consent to random testing. Offered that as some way, you know, of reassurance of how the company sees the process.

PN30

The requirement and opportunity to attend training is educative so that they can become familiar with the policy. We understand that there are issues that the trade union movement is raising with the business in relation to random testing, but we say employees that participate in training, that we won't regard that as consenting to random testing. Now, your Honour, we understand that the AMWU is advising members against participating in the training and I have a letter from the AMWU dated 27 June 2006 signed on behalf of Mr Jose and it reads, and I commence the quote:

PN31

As the policy and related training touches on the random testing aspects, the AMWU has and will continue to advise its members against participating in the training.

PN32

I end the quote there.

PN33

Now, the company is very concerned about that position adopted by the AMWU and we reserve our rights in relation to any potential industrial action that is actually in place in relation to this issue. As we understand it, in Melbourne, the current situation is this, your Honour, in terms of AMWU covered positions, the greater majority, approximately 90 per cent have attended the training. That would be of a workforce out of around about 400.

PN34

THE SENIOR DEPUTY PRESIDENT: 400 AMWU positions?

PN35

MR SMITH: Yes. Now, some of that remainder who have yet to complete the training, that that would be due to operational requirements or other acceptable reasons and simply find the opportunity without disturbing the business operations to allow individuals to participate in training. There's a relative handful that are yet to attend despite clear invitations and opportunity. Now that's an area of great disappointment to the business. Qantas reserves its right to reasonably require those employees to attend alcohol and other drug training.

PN36

Qantas has written to the AMWU by letter dated 6 July. I've got a copy of that letter here, your Honour. I don't know whether it's convenient to go to documentation at this early stage, but it's - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Perhaps that can come a bit later.

PN38

MR SMITH: Thank you, your Honour. The letter indicates that - and I commence a quote:

PN39

We have previously rostered employees to attend the training. However, are now making it very clear that the ...(reads)... instruments. In these circumstances, failure to obey the reasonable direction and attend training is unlawful industrial action.

PN40

The letter goes on to indicate what some of the consequences may be for that in terms of the operation of the Workplace Relations Act and concludes by indicating that it's the company's preference that the training proceed without interruption and the potential loss of pay to any employee and the company asked that the AMWU review the advice it's providing and not opposing employee participation in the company's alcohol and other drugs policy training. Now, we haven't received an acceptable positive response to that letter.

PN41

THE SENIOR DEPUTY PRESIDENT: I think the response is negative, Mr Smith, not positive.

PN42

MR SMITH: Yes, that's probably right. So, your Honour, the company clearly reserves its right to direct employees to attend this training and we would say that that would be open to us and that employees who decline to do that, that there would be consequences that would flow in relation to both their employment and also in relation to that action being characterised as unlawful industrial action which would lead to consequences under the operation of the Workplace Relations Act.

PN43

It's not a path we want to go down, but we also want to make clear to employees that it's a reasonable expectation that employees participate in this training. Your Honour, I haven't spent much time in indicating that perhaps the rationale that underlies the policy, but perhaps for today's purposes it's sufficiently self evident in an aviation environment the key importance of that as an alcohol and other drug free workplace - - -

PN44

THE SENIOR DEPUTY PRESIDENT: I don't think that needs to be spelt out too much.

PN45

MR SMITH: Yes, thank you, your Honour. The company would also reserve its right to seek other relief to the extent that there is industrial action in place at the moment, but we are hopeful today of having discussions with the AMWU and avoid any need to make any other application to the Commission to deal with this matter other than what's before the Commission already. But we certainly reserve our rights in relation to that. Your Honour, lest the point to be taken that we didn't raise it at the first opportunity, I'd just like to make a couple of short points about the application that's currently before the Commission.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR SMITH: Qantas reserves its right in relation to the competence of the AMWU application to attract the Commission's jurisdiction. We do not understand how a dispute concerning alcohol and other drug training could properly be characterised as a dispute over the application of the agreement.

PN48

THE SENIOR DEPUTY PRESIDENT: I must say, I was wondering about that myself.

PN49

MR SMITH: Yes. We also - - -

PN50

THE SENIOR DEPUTY PRESIDENT: You're not closing off the option of discussions this morning?

PN51

MR SMITH: No. Look, your Honour, that was going to be my next point. I just want to raise these points at the first opportunity. I don't intend to explore them in detail before indicating a preparedness to go into private conference, but we note that no specific agreement provision has been nominated by the AMWU. That the provision that's been disputed, about how it's been applied by the business. So, look, we would emphasise, your Honour, in summary, I think if you understand where I'm heading is that we wish to complete the training program without seeing this matter escalate either into further Commission proceedings directed at what I would understand to be industrial action or having to take, you know, directive action against individual employees to attend. However, we're
prepared - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Smith. Is this refusal confined to Melbourne or is it Australia wide?

PN53

MR SMITH: It's confined to Melbourne, as far as I'm aware, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Has it taken place throughout the rest of Australia, has it?

PN55

MR SMITH: Yes. I'm instructed that up to 98 per cent of Qantas employees have completed this training already, including maintenance employees in other ports.

PN56

THE SENIOR DEPUTY PRESIDENT: So we're looking at about 40 people throughout the Qantas organisation who are refusing to participate, is that ballpark figure correct?

PN57

MR SMITH: Look, that probably inflates the numbers because of that 43 in Melbourne, a number of them hadn't had the opportunity and we recognise that, due to operational reasons, so it's a subset of that 43 that haven't - - -

PN58

THE SENIOR DEPUTY PRESIDENT: So it's a handful throughout Australia who are apparently refusing to engage in this process?

PN59

MR SMITH: Yes, that's my understanding, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MR SMITH: Your Honour, I'd conclude on this point, by indicating that the business prepared to participate on a without prejudice basis in a private conference today to see if we can find a resolution to this matter.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. I must say I don't understand the policy at all and that it's probably better that that be explained to me in conference rather than on the record.

PN63

MR SMITH: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: But beyond that, I'm happy if the parties are happy to adjourn into conference. Yes, Mr Jose?

PN65

MR JOSE: Yes, we're happy to go into conference, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: We'll do that now, thank you.

<OFF THE RECORD

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Smith, I understand that the company and the union have reached an agreed position which you wish to place on the record and then that will be converted to a statement from the Commission as well.

PN68

MR SMITH: Yes, thank you, your Honour, that's correct, and the parties appreciate your assistance today. The position is this, the AMWU maintains that Qantas does not have the right to implement random drug testing. Qantas maintains that it does have the right, consistent with its policy to implement random drug testing. Qantas has met with the ACTU on behalf of airline unions, including the AMWU and discussed random drug testing. These discussion were most recently against the background of an Australian government announcement that it intends to mandate random drug testing for aviation employees.

PN69

Qantas confirms that any implementation of random testing will not occur absent further consultation with affected unions, including the AMWU. The AMWU confirms that it will not oppose employees attending alcohol and other drug awareness training and will cease to advise employees not to attend. Qantas acknowledges that attendance at alcohol and other drug awareness training by AMWU members is not to be understood in any way to constitute acceptance by the AMWU or its members of random drug testing.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Smith. Mr Jose, do you agree with what has been submitted by Mr Smith?

PN71

MR JOSE: Yes, we do, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you, gentlemen. That seems to me to be a sensible resolution of the issue that confronts the parties at this stage. I will issue a document indicating that this is the agreement of the parties and that will issue as soon as the transfer becomes available and the Commission of course is available on the wider issue if the parties desire it in relation to any proposed implementation of random drug testing. Yes, adjourn the Commission, please.

<ADJOURNED INDEFINITELY [1.17PM]