C2007/2581, Transcript of Proceedings [2007] AIRCTrans 174 (10 April 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16688-2

COMMISSIONER RAFFAELLI

C2007/2581

QANTAS AIRWAYS LIMITED
AND
AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION, THE
s.496(1) - Appl’n for order against industrial action (federal system).
(C2007/2581)

SYDNEY

10.07AM, FRIDAY, 23 MARCH 2007
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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PN1

THE COMMISSIONER: This is an application for orders in respect of industrial action taken and that application is pursuant to section 496 and notwithstanding what is said about the operation of the certified agreement, the operation of an agreement is not one of the exclusions available under 496 and so whatever it might say is not directly relevant to the work that the Commission has before it. The section requires the existence of certain facts before any order can be made.

PN2

Firstly in that regard I am satisfied that industrial action is occurring and I reach this conclusion because even on the evidence of the federal secretary of the Association, Mr Purveinas, the action directed by the ALAEA on 20 March just past and complied with by its members who are employees of Qantas is the performance of work which is by the allocation of two LAMEs to transit work at Perth which is different from how it is customary or was customarily performed before 20 March 2007. Moreover and notwithstanding what might have happened at the toolbox meeting, in the light of the clear statement of Mr Harris on
22 March where the employees were asked to desist from their action, the employees have failed to comply and again they are matters that fall within the relevant definitions.

PN3

As I said, I am satisfied that the facts fit into the definition of industrial action found in section 420. The question is however and what has occupied most of the time is whether or not the actions of the ALAEA and its members can be characterised as based on a reasonable concern by the employee about the existence of an imminent risk to his or her safety. In my view firstly there was no evidence led to demonstrate that any employee had a reasonable concern as to their imminent safety and that is contrasted with a general concern that they had as to whether if something happened, whether relevant arrangements were in place.

PN4

I will not labour the point by referring to the decisions that have been handed up but I think the words of G1 clearly require a very defined and immediate concern that an employee may have, not a general concern that an association might have on their behalf, although a risk maybe imminent in a general way, but certainly there is no evidence of that here. Secondly, that view of mine is corroborated by the absence of any individual or collective complaint to the OHS committee, to other bodies, to Qantas managers, or through the disputes procedure under the certified agreement concerning such alleged safety fears. Indeed, if what is contained in exhibit ALAEA1 with question marks and shortcomings as to rovers and the appearance of various supervisory persons doing normal transit work is correct, then it invites the question why no formal complaint was made by the ALAEA or its members prior to March when some of those incidences and sheets go back to at least December of last year.

PN5

The Commission also noted the lack of any evidence or reference to injuries or emergency situations that have occurred at Perth, either those that occurred prior to the change to the eight hour shift in November 2006 and those that have occurred since then. Finally, or almost finally, the Commission did note the clear evidence of the Qantas witness that at all times licensed engineers know that if there's any difficulties with the aircraft or with their own safety or safety of others, then the job stops and they await whatever assistance or back up is required. Finally I note that the nature of the direction which is the institute of two man operation is not necessarily directly curative of the so called safety risk.

PN6

In my view the safety exclusion or the exclusion under 421(g) is not made out. Therefore the industrial action, as I said, is happening and is continuing. It is not protected action. I should have also said it is also being organised by the Association on behalf of its members. In all of those circumstances the Commission must issue the orders. As for the type of orders I am satisfied that I ought issue them as sought, excepting that after the current words in 4(a)(iii) and 4(ab)(iv), after the company it should say -

PN7

Immediately prior to 20 March 2007.

PN8

Now, that may not address the further points or further concern raised by
Mr Norris. I don't propose to alter the order further. Section 496 requires a practical and a swift approach by the Commission in dealing with an alleged industrial dispute and it's not there to - or it doesn't invite spending hours trawling over a document as long as it is reasonably clear and practical in its effect. The union will have noted and the representatives in Perth will also have noted that
Mr Hayes quite directly put in answer that at the end of the day backup can be called for and if backup is not available the licensed engineer is not required to do anything other than sit and wait and so I think I needed burden the order with comments such as that and perhaps some other comments that were made by Qantas should fall on the receptive ears of the Association.

PN9

As to how long the order would remain in place and I propose that it would operate from as soon as I can sign the order this afternoon, I consider that the ALAEA has raised some important issues and they do include the fact that there does not seem to be enough senior LAMEs, that the DMMs are not as accessible including to deal with emergencies and as they may have been in the past and that there are not enough rovers available. Now, it may be that these shortcomings arise from Qantas' decision to alter the shift arrangements, or it may be the result of protest activity by the ALAEA in reaction to - by restricting overtime, volunteers for overtime and for higher duty work as a protest for the eight shift. I don't know, perhaps it's a mixture of those factors.

PN10

What it does, is it all points to the matters which are properly being discussed between the parties separately and I note with the assistance of Vice President Watson. As a result of that I propose to keep the order in force for a period of one month in the hope that all of these matters which are, as I said, being at least canvassed on Monday, can be brought under some separate attention, if possible, resolution. So in conclusion, the order as I have suggested with a slight variation will come into force today. It will operate for a period of one month. On that basis these proceedings are adjourned.

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