C2007/2572, Transcript of Proceedings [2007] AIRCTrans 188 (17 April 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16736-1

COMMISSIONER SMITH

C2007/2572

CIVIL AIR OPERATIONS OFFICERS’ ASSOCIATION OF AUSTRALIA, THE
AND
AIRSERVICES AUSTRALIA
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2572)

MELBOURNE

10.33AM, FRIDAY, 30 MARCH 2007

Continued from 23/3/2007

Hearing continuing

PN39

THE COMMISSIONER: Is there any change in appearances?

PN40

MR W FRIEND: Commissioner, I now seek leave to appear on behalf of Civil Air.

PN41

MR F PARRY: I seek leave to appear with my learned friend MR T JACOBS for Airservices.

PN42

THE COMMISSIONER: Leave is granted in both cases. Yes, Mr Friend.

PN43

MR FRIEND: Commissioner, I understand that you may have received a document which probably isn't a formal application but arising out of matters that have been before you previously; sets out in summary form the interim relief sought by Civil Air and the grounds for that application. Do you have a copy of that?

PN44

THE COMMISSIONER: No.

PN45

MR FRIEND: I think my learned friends do. I'll hand that up and it may give some structure to what we're saying.

PN46

THE COMMISSIONER: Thank you, Mr Friend.

PN47

MR FRIEND: I'm sorry, I should also at the same time hand up a copy of the certified agreement.

PN48

THE COMMISSIONER: I do have a copy of that, thank you.

PN49

MR FRIEND: And an outline of the submissions that I propose to make this morning.

PN50

Commissioner, the application is for an interim order and what I propose to do is to set out the case from the bar table. I'll tender some documents during the course of it but by the nature of an application such as this, disputes as to facts don't really bear much on the final disposition of an interim application. The question will be whether there's a serious issue to be tried.

PN51

Firstly, Commissioner, as I've said in the outline - - -

PN52

THE COMMISSIONER: If you're going to, please do so in your own time but I would be assisted as to whether or not the statute permits me to make an order of an interim character or an order, full stop.

PN53

MR FRIEND: Yes, it does.

PN54

THE COMMISSIONER: As I said, in your own time, Mr Friend.

PN55

MR FRIEND: It's not a matter that I would particularly turn my mind to but it does because the transitional provisions of the new Act in schedule 7 - do you have the CCH, Commissioner?

PN56

THE COMMISSIONER: Yes, the honeypot version.

PN57

MR FRIEND: Yes, the honeypot, so page 985 - at least we've got page numbers now - this is Part II dealing with pre-reform certified agreements - I'm sorry, it's 982:

PN58

Subject to this schedule the following provisions of the pre-reform Act continue to apply in relation to a pre-reform certified agreement.

PN59

Then you have a subparagraph (e) section 170LW which is the provision we invoke and then, importantly in answer to your question:

PN60

Any other provision relating to the operation of the provisions mentioned in the preceding paragraphs.

PN61

What we do is, we go back to the pre-reform Act.

PN62

THE COMMISSIONER: To ..... to LW.

PN63

MR FRIEND: LW and everything that flows from that so we don't have to worry about the limitation on dispute resolution and orders in the new Act.

PN64

THE COMMISSIONER: Yes, I follow.

PN65

MR FRIEND: Can I take you to 3.4 of the certified agreement. It deals with dispute resolution, dispute avoidance and settlement procedure. 3.4.1 sets out the procedure and at 3.4.2 it says:

PN66

If the matter cannot be resolved by following the process outline above, it may be referred in accordance with section 170LW of the Act to the AIRC to settle the dispute over the application of the agreement.

PN67

Commissioner, we submit that there are three clauses in the agreement in respect of which there is such a dispute. 3.1, consultation on employment issues, and I'll just invite you to read that. You will see, in doing so, that it is a fairly broad consultation provision, involves exchanging information and has an objective of reaching agreement on proposals for change so it is dealing with specific proposals and it is significant in this case.

PN68

Then we go to 5.6.1:

PN69

We will ensure that all selections for recruitment and promotions are determined with regard to merit and relative efficiency.

PN70

Thirdly, 7.10 which deals with redeployment and redundancy. I won't ask you to read that at the moment but I'll come back to it in due course.

PN71

If I can simply outline the final relief that the union would be seeking in this matter, which is an order requiring the employer to consult with employees about a range of changes it proposes to introduce in the restructure firstly; secondly, an order requiring the employer to appoint existing employees on promotion to ATC line manager on merit and relative efficiency and thirdly, an order requiring the employer to comply with clause 7.10 with respect to employees who are potentially surplus.

PN72

Each of those matters, Commissioner, concerns the application of the agreement, not whether or not the agreement applies, but applying it to the facts in this case and what the rights of the parties are. It would not seem to be a proposition that's likely to be in dispute. The Commission has power to grant interim relief under LW. That seems to be established by Telstra v CEPU.

PN73

In doing so, the Commission applies similar tests to that applied by courts in granting interlocutory injunctions and I just set out a reference to the decision of Kaufman SDP. I have a copy of that if that would assist but again, I don't think that's likely to be contentious, Commissioner, so one has to look at the relative - sorry, whether there is a serious issue to be tried, in other words whether, in effect, the union has an arguable case, one which could succeed if the facts asserted are correct and where the balance of convenience lies and you balance those things up.

PN74

If there's a strong arguable case, then you don't need much balance of convenience, if there's a weak arguable case, then a strong balance of convenience and put it all together globally and determine what's appropriate, whether you should preserve the subject-matter of the dispute to ensure that the Commission can exercise its jurisdiction.

PN75

Can I now take you, Commissioner, to the three matters that we raise. Can I first start with the observation about consultation, that it must be genuine. It must involve an opportunity to influence the decision-maker but not be a frustrating barrier.

PN76

THE COMMISSIONER: I've been here too long if I hear my own words.

PN77

MR FRIEND: We've got a copy of that decision if you need it. We put that forward as the type of consultation that's required by the agreement and in fact I point particularly to the fact that the agreement talks about consultation about proposals for change.

PN78

There has been some general consultation in this case and if I can deal with the matter in this way, that I'll hand up to the Commissioner three documents to save your associate coming three times.

PN79

THE COMMISSIONER: Do these need to be marked?

PN80

MR FRIEND: They probably should be, sir.

PN81

THE COMMISSIONER: Any issue about these, Mr Parry?

PN82

MR PARRY: I don't know, your Honour, but I don't mind - I'm not opposing them being marked.

EXHIBIT #F1 NEW STRUCTURE AIR TRAFFIC CONTROLLERS
EXHIBIT #F2 LETTER TO MR MCGUANE DATED 26/03/2007
EXHIBIT #F3 LETTER DATED 21/03/2007

PN83

MR FRIEND: Commissioner, you will understand I think from previous proceedings that what is happening in Airservices is that a line of management, team leaders, of whom there are some 120, that position is being abolished and a new position of line manager is being created. There are, I think, 106 line manager positions being created. The announcement in regard to this proposal was made on 2 February 2007, that's the announcement to the employees. The announcement was made to the union on 1 February, the day before, but the union was under an embargo not to reveal any of the details and that's a significant point in terms of whether or not there's been consultation about the proposal.

PN84

The new structure is set out in exhibit F1 and I don't need to do anything more than draw your attention to that, sir. There has obviously been discussion between the parties as to whether or not there has been adequate consultation and Airservices Australia has written to those instructing me, in particular
Mr McGuane on 21 March setting out what they say is the position. We would rely upon this. This is exhibit F3. The letter under the heading Consultation in the second paragraph says:

PN85

As part of our response we've compiled and attached a summary of the communications we've had on this matter with Civil Air.

PN86

They talk then at the bottom of the page about commencing in September 2006, about a decision to move to SDE, which is service delivery environment, what it involved, the reasons behind it, the phased or step-change way in which it would be implemented.

PN87

Turning to paragraph (b):

PN88

It was clear also from the information provided at that time that the structure and content of the roles of the new structure would be designed to reflect a clearer delineation between operational and work of a supervisory management nature.

PN89

Then in the next paragraph on 24 November the issue of consultation in relation to SDE was raised in the context of a national consultative council.

PN90

Then in (d) - this is the point, Commissioner:

PN91

The new structure was presented on 2 February.

PN92

What the union submits, sir, is that that new structure had to be the subject of consultation because what in fact happened was, it was presented to the union as a fait accompli. Yes, there was a general discussion about issues in relation to the service delivery environment but what consultation requires is the ability to influence the decision-maker and one shouldn't be confronted with a decision which is made without having any ability to say, "Well, that could be done better this way or done better that way." There needed to be consultation about the proposal and the proposal was never put.

PN93

I take you back, Commissioner, to the words in the agreement at 3.1.4 which specifically pick up this proposition:

PN94

The objective of consultation will be reaching agreement on proposals for change.

PN95

The parties have agreed that the proposals have to be put, then exchange of information and what have you, consultation about the proposal, and we submit that that hasn't happened because immediately upon that matter being announced on 2 February applications for the positions were opened. Commissioner, if you turn to (f)(1) at the bottom of the second page, the milestones, applications for third level management positions are called for immediately. That's not the positions we're talking about here. The selection process of the ATC line managers will be conducted between the months of March and May. In regard to that it is submitted that there is a strongly arguable case. There hasn't been the type of consultation contemplated by the agreement between the parties.

PN96

THE COMMISSIONER: Is it put that your client was not aware of the key ingredients contained in (f)(1)?

PN97

MR FRIEND: Yes. They were told on 1 February but it was embargoed.

PN98

THE COMMISSIONER: Yes, I understand that.

PN99

MR FRIEND: 1 February they don't know the key ingredients.

PN100

THE COMMISSIONER: Prior to that, referring to the letter of 21 March, it says:

PN101

You were informed in detail about the decision to move to the service delivery environment.

PN102

MR FRIEND: Yes, but the key ingredients are the new job and also - - -

PN103

THE COMMISSIONER: The front line manager and the nature of the appointment.

PN104

MR FRIEND: Not the front line manager, the line manager I think it is. I may be wrong about that, and the nature of the appointment on an AWA, which is the next point and relates back to clause 5.6. I should also perhaps, in regard to that, ask you, Commissioner, to turn to clause 5.1 which deals with salary and classification arrangements and it says the ATC, air traffic controller, for present purposes:

PN105

Classification structure and base salary points are in attachment 1.

PN106

That includes attachment 1 at point 4, team leaders, which is the position being abolished. If one then looks at clause 1.9 which deals with facilitative arrangements, 1.9.1 says:

PN107

This agreement contains facilitative arrangements which provide opportunities for agreement to be reached as to how specific agreement provisions can apply flexibly in the workplace.

PN108

THE COMMISSIONER: It's a question I don't know the answer to, sorry, but under the new legislation does Work Choices legislation render void any provisions in certified agreements?

PN109

MR FRIEND: I think insofar as they deal with prohibited content. I think they do.

PN110

THE COMMISSIONER: Is facilitative arrangements one of those?

PN111

MR FRIEND: Only if the union is required to be involved, I think, Commissioner. That's my understanding of the matter and the union isn't required to be involved in this but you'll see at 1.9.4:

PN112

The following agreement clauses have been identified as facilitative provisions for the purposes of this clause -

PN113

and one of those is 5.1, salary and classification arrangements so there needed to be discussion about that on that basis as well before they abolished the position of team leaders from the classification.

PN114

The next point concerns 5.6.1 which is the merit, promotional merit. Can I hand up to the Commissioner the advertisement for this position. I don't think this is in dispute - - -

EXHIBIT #F4 ADVERTISEMENT FOR AIM POSITION

PN115

MR FRIEND: - - - but it is the case, as you'll see at the bottom of the page, the last paragraph in the larger typeface:

PN116

An attractive remuneration package will be offered to successful applicants based upon position requirements -

PN117

et cetera, using an Australian workplace agreement. As we understand the matter, existing employees who are team leaders - this is almost like a spill and fill, Commissioner, because the team leader positions are being involved. Those existing employees are invited to apply for this new position which more or less encompasses the team leader position but in order to succeed in their application they have to enter into Australian workplace agreements. If two people have applied for what is on one view a promotion, and 5.6.1 deals with promotions and these are existing employees entitled to the benefit of this agreement, 5.6.1 says:

PN118

Ensure that all selections for recruitment and promotion are determined with regard to merit and relative efficiency.

PN119

Two people who are equal in merit, or even if one of them is superior in merit, but does not wish to enter into an Australian workplace agreement, well then, they won't succeed and we say that that contravenes the agreement of the parties.

PN120

THE COMMISSIONER: This is only an internal advertisement, is it?

PN121

MR FRIEND: I am not sure, Commissioner. It may well be external but I'll be corrected if I'm wrong. If AWAs aren't required, I'm sure Mr Parry will tell you that, but our understanding is that of internal applicants an AWA is required.

PN122

THE COMMISSIONER: No, I mean the advertisement, exhibit F4, that's only an internal advertisement to existing staff?

PN123

MR FRIEND: I'm not sure. That's why I was addressing that - well, it is. I'm told it is, sir. That deals with the second issue and is the foundation for the second subparagraph, paragraph 3 of the outline. It's obvious that the matters that have been identified as the types of orders that we would seek on final relief would need to be refined and clarified and that would need to be done in fairly short order and we would, of course, do that so that the parties could prepare their cases.

PN124

The third point involves the redundancy issue. We know, Commissioner, that there are 120 team leaders and that those positions are being abolished. The team leaders, as you've seen from the certified agreement in the appendix receive 10 per cent more than air traffic controllers. There will be only 106 line managers. The team leaders who do not apply for a line manager position or who are unsuccessful in their application - - -

PN125

THE COMMISSIONER: Sorry, could you just take me to the team leader classification in the appendix?

PN126

MR FRIEND: Yes. In the appendix air traffic controller is the first part of attachment 1, then you've got a column ATC salary. If you go down to cat A at the bottom, second classification there team leaders, applicable salary, depending on category, plus 10 per cent loading.

PN127

THE COMMISSIONER: I see. Thank you.

PN128

MR FRIEND: The redundancy provisions of the agreement are somewhat complex but I don't believe that we need to go to them in a great deal of detail. The starting point at 7.10.3 deals with employees who are declared as being potentially surplus. It must be the case that some of the team leaders will be potentially surplus and 7.10.3(b) says that if you are potentially surplus you can be redeployed but you have to be redeployed at the same level, at your classification level. If they're not going to employ anyone as a team leader, they can't be redeployed at that level and so it's a matter of logic that there will be people who are potentially surplus and the agreement makes provision in relation to consultation in respect to that.

PN129

7.10.5:

PN130

Once we're satisfied after consultation and consideration of other options outlined above that redundancies are likely to occur, the employees who are potentially surplus will be invited to volunteer for termination.

PN131

There at least needs to be that sort of consultation going on at this stage, the consultation prior to reaching the satisfaction that redundancies are likely to occur, at least at that level, Commissioner.

PN132

Commissioner, it's my submission that we have a strongly arguable case in relation to each of these matters and that each of them gives rise, in different ways, to a need for urgent relief. The process of interviewing persons is being carried on as we speak. If it continues, pending the hearing of the union's section 170LW application, the employer will find it more and more difficult to consult genuinely because their position will become firmer and firmer, people will be reaching the process of appointment or may indeed have been appointed to the positions and that makes it even more difficult for the employer to resile. One needs to keep open the possibility of consultation which can lead to the employees influencing the employer. If the employer's mind is closed then that won't happen and the further along this path they get, the more likely it is to be closed.

PN133

On a similar basis, Commissioner, there are a number of employees who may not wish to enter into an AWA and they may be persons who will refuse appointment with line managers for that reason only and they may not apply. One ought to avoid that situation if our position on clause 5.6.1, as it applies to these facts, is correct.

PN134

Finally, employees may be affected in terms of what they decide to do, whether they decide to apply and they may wish to apply more strongly or they may decide to apply because there is a prospect of redundancy or they may decide not to apply because there's a prospect of voluntary redundancy but it's an issue that's a live one.

PN135

I wouldn't submit to you, Commissioner, that that is the most powerful issue in the balance of convenience arguments that I put but it is one that goes into the scales. The first two, in my submission, are indeed quite strong considerations in favour of the granting of interim relief.

PN136

The position that the union takes is that it wishes to agitate this matter. It is prepared to cooperate in a speedy and efficient disposition of the matter to ensure that there is as little disruption as possible to the employer's program, consistent with the terms of the agreement being complied with if we're right. We haven't heard about balance of convenience from the employer's side. It has not been easy to think of anything that would be of any substance in that regard, but we'll no doubt hear from Mr Parry and I'll say what I have to say about that in reply.

PN137

Unless there is anything further I can say to assist you, sir, those are the submissions of the union.

PN138

THE COMMISSIONER: Yes, Mr Friend, does clause 3.4.3 have any work to do in these circumstances?

PN139

MR FRIEND: No, sir, because I apprehend you might be referring to the passage in the Telstra v CEPU decision where they said no interim order because of a similar but different clause. The clause in the CEPU v Telstra case was relevantly different because it said not just that work would continue as normal but that any processes under the - - -

PN140

THE COMMISSIONER: Would not be interrupted.

PN141

MR FRIEND: I'm sorry?

PN142

THE COMMISSIONER: Any processes would not be interrupted.

PN143

MR FRIEND: Any processes would not be interrupted. We don't have that in this case. Work is continuing as normal.

PN144

THE COMMISSIONER: Is it a status quo clause?

PN145

MR FRIEND: It's only a status quo as to work continuing as normal.

PN146

THE COMMISSIONER: I see.

PN147

MR FRIEND: It doesn't stop - - -

PN148

THE COMMISSIONER: Doesn't bear upon.

PN149

MR FRIEND: - - - a change being introduced. I mean, one could argue that the status quo, it supports our case if it's a broad status quo case because one could say, well, you shouldn't be appointing line managers and putting them in the job if work is continuing as normal. It's probably not that broad. It's probably just about work. If the Commission pleases.

PN150

THE COMMISSIONER: Thank you. Mr Parry.

PN151

MR PARRY: If the Commission pleases, the order sought today is an interim one. It's very significant. It will have a significant effect on Airservices and importantly, for today's purposes, it will have a significant effect on those people who have made applications for the fourth line positions. We do make the point that we say today that there should not be any orders made, apart from orders for the filing and service of witness statements and our submission is that there should be a hearing of the final relief sought on 10 and 11, if necessary, April.
Can I indicate, too, that Airservices are happy to meet with the union outside this forum next week to discuss their concerns and we'll in that process listen and take note of the issues raised by the union.

PN152

Immediately, and as an overview, the process we put forward is one that covers a time span where there won't be any appointments made and I will take the Commission through the timeframe shortly, and the estimate of the time for appointments would be mid May. However, the interview process is two-thirds complete and to interrupt that would have significant effects.

PN153

The principles about interim injunctions are well known to this Commission. We do make the point that they're not quite the same because the Commission has to satisfy itself of jurisdiction, and noting the Commission has followed these processes with regard to interim relief, we do make the point that firstly, there's the arguable case, and we'll deal with that shortly, but clearly the balance of convenience is a significant matter. Importantly, it's about preserving the status quo for a short time and we will be saying that the process we've proposed would allow for the final resolution of this matter within a short timeframe without there being prejudice to any party.

PN154

Can we also say, and my learned friend has made a number of submissions from the bar table, some of which we take issue with and I'll hopefully point out some of those, but to seek interim relief that should be sought at the earliest possible opportunity. There should not be a delay and in this case we say there has been a delay. The parties, being Civil Air in particular, knew that the interview process was going to be conducted over this timeframe and it had chosen to come to the Commission at a very late stage seeking to stop that process.

PN155

Your Honour, the background of this, my learned friend has handed up some documents and on my quick instructions we don't take issue with that they are what they appear to be. Your Honour might have noted that there is - and I think it's in exhibit F3 of 21 March - your Honour might note the term SDE there and that means service delivery environment. That is a new system being implemented by Airservices. The board decided this in August 2006 and it's effectively a resectorisation of the airspace in which air service provides air traffic control services. If the Commission interrogates me too much about that, I won't be able to assist a lot further.

PN156

However, the implementation of SDE requires, among other things, a management structure that is complementary to the operational framework and that ultimately involved the development of a level 4 management structure. The implementation of SDE and the development of the new structure was advised to Civil Air officers on 14 September 2006 so SDE has been around through 2006. Civil Air were told in September that there was to be a new structure for management developed. This appears in exhibit F3 in subparagraph (a) at the bottom of the page. After that the issue of consultation in relation to SDE and related matters was raised in the national consultative council on 24 November 2006 and again your Honour will note this appears in exhibit F3. Just as a quick aside, the agreement itself contemplates the creation of these consultative councils in 3.2.

PN157

On 12 December 2006 there was a briefing to the national executive of Civil Air. They were told the structure and supervision model were being finalised and would be finalised by the end of January so they were aware of these steps being taken. My learned friend has said that Civil Air were advised on 1 February of the structure. He has handed up, I think, a document, being F1, which I understand from my quick instructions, was a document placed on the internet. There are other documents around this time of a similar form.

PN158

Your Honour will note from then that the union were told on 2 February, which is almost eight weeks ago, that there was to be these level 4 managers, they were to be employed on AWAs, and the selection process - this is on the last page of that exhibit - was to be conducted between the months of March and May. What the union did then is not particularly clear. Indeed, that seems to be a bit of a gap in the submissions that have been made from the bar table. It's a gap because really they did nothing.

PN159

What they did do, and I note that then - well, to follow the chronology through, the next step was exhibit F4 which is the document, being the employment opportunities dated 28 February and your Honour might note from that two things: firstly, there was a position description that could be obtained by following through the link halfway down the page, and secondly, applications closed on 14 March 2007.

PN160

Can we say again, what did the union do at this time? What they did was embark on a sort of self-help criticism of the process. That's a legitimate union tactic and we can't criticise them for that. However, we can criticise them if some
three weeks later they come to the Commission saying, "Well, we now want to use the Commission to stop something that we knew about in February" and perhaps I'll hand up a document dated 6 March, Flash, Flash, Flash from Air Traffic Control.

EXHIBIT #P1 FLASH FROM AIR TRAFFIC CONTROL DATED 06/03/2007

PN161

MR PARRY: This is a document that criticises the AWAs. It's a document that I understand was circulated to air traffic controllers and it criticises AWAs and it gives some information about them and it says at the end:

PN162

We will continue to publish information in Contact -

PN163

which is a publication of Civil Air and on the Civil Air website and they ask to refer any questions to delegates. Then there's an attachment to that which is manifestly not a Civil Air endorsed document because that's what it says, but it's headed Certified Shafting and again it's critical of the process and the positions. The union chose this course, as they legitimately can, criticising the employer's position and circulating documents.

PN164

MR FRIEND: I'm sorry to say I think there should be two separate tenders. I don't think it was attached to this document.

PN165

MR PARRY: I'm comfortable with that, Commissioner.

EXHIBIT #P2 CERTIFIED SHAFTING

PN166

MR PARRY: I'm uncertain of the date of the second document but I do note that it has a fax machine mark at the top dated 6/3/2007 and unless people are much more devious than I would suspect, I think we can take it from that that it was actually distributed on or before that date, 6 March.

PN167

That's what the union did and the next time the union did something was on 20 March, some two weeks after distributing these documents, when they made the application originally to this Commission under section 170LW. Then, after making that application there was a proceeding in the Commission and this week on, very roughly, the 28th, make an application for interim relief to stop the process.

PN168

By this time there's been 189 applications made for these positions and some 14 of those were not short listed for various reasons and six withdrew, which leaves around 169. The interviews for the positions were commenced by panels of managers selected from Airservices throughout the country and last week those interviews, as I indicated, commenced. Managers flew around, interviewed people, made notes obviously and by the close of business today there will be some 97 out of 169 that have been interviewed. The remainder are to be interviewed next week.

PN169

What's happened is that the interview processes for next week have been put in place. The employees have been told of where the interviews are to occur and the times of them and arrangements have been made in respect of taking them off rosters where necessary. The managers that have been involved have obviously made their own arrangements for next week. Flights are booked because people are flying. There are some 11 interview panels with three people in each and there's interviews being conducted in the major capital cities around the country.

PN170

What happens thereafter is that after Easter there will be a consolidation of the outcomes and managers of these panels will forward outcomes as to suitability for the position of line manager to the people and change unit. After that there will be a process of psychometric testing. That will commence in the week, probably, of 16 April and at that time those that have no reached that stage, the unsuccessful candidates, will - there will be discussions with them about their future, about the options for them within Airservices.

PN171

Then on the timeframe, my instructions are, two weeks after that, and this is we're here towards the end of April, the beginning of May, Airservices management will meet and start making decisions. Then there will be the process of offers being made and at that stage we would anticipate that there will be bargaining agents appointed, there will be discussions as to the terms of the AWAs that are the proposed mode of employment.

PN172

THE COMMISSIONER: Mr Parry, did I understand that timeframe to mean that there would be no decision about the success or failure of any applicant for the position prior to 10 or 11 April?

PN173

MR PARRY: Yes. The next steps after the bargaining agents in compliance with the terms of the Act will be ultimately the offering of an AWA and if accepted within the terms of an Act, there will be an appointment made. On our timeframes we don't see the appointments being made until around the middle of May.

PN174

Your Honour, that's the sort of factual background. Hopefully it's of some assistance to the Commission. As to the legal position, we note that the Commission needs to be satisfied of jurisdiction and power. As to jurisdiction that requires a dispute over the application of the agreement. We don't concede that there is such a dispute. With regard to consultation, it will be our position ultimately, as it is today, that Civil Air have been given the opportunity to consult. Indeed, they have been consulted with over a long period of time and rather than actively engage in that consultation process, they chose a more traditional approach of proposing the approach that was opposed by Civil Air and again, as we say, we understand why they would do that in that that's a legitimate union approach. Then to come along and use an argument about consultation not being made available to them, we say the two don't hang together. We say that there isn't a dispute over the application of the agreement.

PN175

As to the other argument, that is the selection process, that's 5.6.1, we don't understand this argument really at all. It's manifestly a process where all people suitably endorsed within Civil Air being invited to apply for these positions and we don't understand how it can be said that recruitment and promotion are not going to be determined by merit and relative efficiency.

PN176

As to the existence of AWAs, your Honour, the Commission might note that the drafters of the certified agreement expressly contemplated the coming into existence of AWAs and indeed, the Commission might note clause 1.6.3 which is clearly a recognition by the parties to the certified agreement that AWAs could be entered into and can operate and they prevail. Indeed, that's the legislative scheme that was in existence when the certified agreement was made and it continues to be consistent with the legislative scheme.

PN177

The final dispute, as we understand it, is that somehow the redundancy clause has been triggered. The obligations under that clause come about when employees are formally declared as being potentially surplus. At present Airservices is simply nowhere near that position so the obligations therein have not yet been triggered. We don't concede there's any jurisdiction. If the Commission finds jurisdiction at the low level of an arguable case, then there is a question of power.

PN178

The Commission did draw my learned friend's attention to clause 3.4.3 and we do make the submission that that clause does have effect and operation. It is a clause which recognises that when the disputes procedure is triggered, things continue on, work continues on. That means work is not something that individual employees engage in, it's a process that's conducted by the organisation and we say clearly a process whereby management is implementing a restructure quite easily falls within the definition of work.

PN179

I think you've been referred to the Telstra decision, Commissioner. I have a copy of that. Perhaps I'll hand up - - -

PN180

THE COMMISSIONER: It's always a vexed question, the status quo. I perhaps take an over-simplistic view or rather I'm attracted to an over-simplistic view, subject to anything people might say. If people are asked to wear red bonnets, what was the position before they were asked to wear red bonnets?

PN181

MR PARRY: That, whilst it is a neat example, it would require context. It might be that they work in a bonnet factory and wearing of bonnets might be something they do every day and it might be a different sort of bonnet they would have to put on. In that circumstance the status quo would be, "You will put on whatever coloured bonnet we think you should put on."

PN182

The status quo is a vexed proposition but if one goes to the agreement it's an agreement that the parties when they made, contemplated the sort of things being developed and I don't think to read a certified agreement as assuming things were locked in concrete at a particular time would be an incorrect reading of it.

PN183

I hand up the Telstra decision. I'm sure the Commission is familiar with it.

PN184

THE COMMISSIONER: Thanks, Mr Parry.

PN185

MR PARRY: Commissioner, those instructing me would want to clarify something I think that perhaps came from the other end of the bar table. That is, the positions of supervisors have not been abolished and their work is to continue unchanged. Certainly my instructions - well into the period after the appointments have been made because - a couple of things: firstly, these appointments are not automatically going to become operative in the middle of May. They may well be implemented further over the year. The Commission cannot assume that the positions of supervisors are abolished or will be abolished in the short term.

PN186

The Telstra decision really is a Full Bench decision which is consistent with the arguments we advance that, where one has clauses in certified agreements in disputes procedures that provide for the continuation of work and recognising that there's a wording difference, but the general thrust of that position is that you then don't use disputes procedures to stop things happening where there's such a clause. We say, even assuming you have jurisdiction, there is not the power.

PN187

As to balance of convenience, assuming that the Commission moves on to that the Commission is pretty well familiar, I think, with the concept surrounding - and it appears in a decision of the Commission, a Full Bench decision of the University of Sydney v NTEIU of which I've got a copy to hand to the Commission. I'll also hand up - just looking after my opponent first, I'm sorry, far too friendly.

PN188

The point of handing this up is, this was an argument about interim orders and breaches of interim orders and the Full Bench might note the decision of
Duncan SDP in paragraph 8 where there had been an application for an interim order. He was conscious of the comment of the Full Bench of the Commission in the Metal Trades Award 1952 and the dicta of the Chief Justice in Castlemaine Tooheys, the three dot points there are set out. The Commission has heard submissions about those already.

PN189

We make the point that in paragraph 22, it's noted by the Full Bench that the Senior Deputy President properly had regard to the observations about interim awards referred to in the Metal Trades Award. I think we've also handed up the Metal Trades case and again I'm sure the Commission is familiar with this, but on page 64, the third paragraph down:

PN190

We do not propose to attempt to cover all the situations in which interim awards might properly be made in this jurisdiction. We would say, however, that an interim award is an unusual measure which should only be made in special circumstances.

PN191

The Full Bench has recognised that and we respectfully adopt that and submit that in the jurisprudence of the Commission that's the approach to interim positions.

PN192

Also with regard to balance of convenience, of course we say that the interviews are an important step, they're well advanced. Stopping the interviews would have no benefit at all to the employees involved. It would stop a process which is, as I've submitted, two-thirds of the way through. It's a process which the union have been well aware of at least since the timing of the process, at least since February. It would be a detriment to the applicants involved, it would be a detriment to Airservices. Stopping that process is not the preservation of a status quo and it would be, in our submission, inappropriate to do so.

PN193

We submit that in a scenario that we have painted where there are not to be appointments made until mid May and a process whereby the Commission has already indicated that it can deal with this matter expeditiously, but the appropriate course would be that the Commission set the dates that it had available last Friday, make orders for the provision of whatever evidence or material the union want to provide and a response from Airservices and the matter be listed as expeditiously as possible. If the Commission pleases.

PN194

THE COMMISSIONER: Mr Parry, there was just one other issue that was on my mind. Are there any persons - and I think Mr Friend just touched on it briefly - who have declined to apply to your knowledge or your client's knowledge because of the nature of the contract that's to be offered and if so, if Civil Air is successful, is there any opportunity for those persons to be considered, should they wish to, on merit along with other applicants for the position?

PN195

MR PARRY: I'll get instructions on that, Commissioner.

PN196

THE COMMISSIONER: Thank you.

PN197

MR PARRY: My instructions are, not to the knowledge of those instructing me, your Honour.

PN198

THE COMMISSIONER: Thank you. Mr Friend.

PN199

MR FRIEND: We say that to the knowledge of those instructing me there are such choices. They've declined to apply because of the nature of the industrial instrument so that gives rise to the second question which your Honour asked but we can't answer that.

PN200

Can I say just a few things in reply, Commissioner. Firstly, there was some mention of the delay between the announcement of the decision and the application to the Commission. As you'll be aware, Commissioner, sometimes applicants in LW cases are criticised for not going through the previous steps that are supposed to be gone through before coming to the Commission and there are cases where you're thrown out because you haven't done that. We've done that and we shouldn't be criticised for having done that and come here.

PN201

We have indicated to Airservices the possibility of the application for an interim order last Friday and informed them that was the step we were going to take on Monday. Their initial proposal was to have interviews commencing this week and continuing over the following two weeks and that appears from a document which I can hand up, which is a memorandum of 22 March - sorry, short-listing on the week, 22 March - short-listing for interviews which - I'm sorry, Commissioner, it's quite hard to follow this but it says:

PN202

We've now commenced short-listing for interviews which will start next week. The short-listing starts on the 29th, interviews will continue over the next
two weeks at locations around Australia.

PN203

It appears to us, sir, that the process of interviewing has been revved up as a result of this application. I can tender a copy of that document, if the Commission pleases. I'll also, to save your associate, hand up another document which is an organisation chart of the new structure. Something was said about the position of supervisor not being abolished - team leader not being abolished, but it doesn't appear in that new structure. I think what my learned friend was saying was that there will be a transition period during which some of those people will continue but certainly that position is not in the new structure.

EXHIBIT #F5 AIRSERVICES MEMO
EXHIBIT #F6 NEW ATC STRUCTURE

PN204

MR FRIEND: Nothing substantial, sir, has been put about the need to have these matters done this month rather than next month. In fact, there's no deadline in relation to appointment. It may be that the matter can be heard and we would certainly cooperate the hearing on 10 and 11 April but the matter doesn't necessarily end there. We submit that it's more appropriate to put the process on hold at this stage, which will assist people not to get into positions in which they're locked and to which they are wedded - that was a bad mixed metaphor - so that if the union is right the matter can be dealt in accordance with the agreement in due course. If the Commission pleases.

PN205

THE COMMISSIONER: Thank you for your submissions. I accept the submission of Mr Parry that no decision will be made about the appointment or non-appointment of any person prior to the hearing of this matter on 10 and 11 April. On that basis I don't propose to consider the matters raised about the issuing of interim orders or otherwise. Leave is granted to Civil Air to renew its application at the conclusion of the hearing on 11 April. The parties should confer immediately and seek to agree upon consent orders for the smooth and efficient conduct of the matter on 10 and 11 April. I shall be available after rising to assist if that be necessary, or to receive details of those consent orders. The matter is adjourned until 10 o'clock on 10 April.

<ADJOURNED UNTIL TUESDAY 10 APRIL 2007 [11.46AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 NEW STRUCTURE AIR TRAFFIC CONTROLLERS PN82
EXHIBIT #F2 LETTER TO MR MCGUANE DATED 26/03/2007 PN82
EXHIBIT #F3 LETTER DATED 21/03/2007 PN82
EXHIBIT #F4 ADVERTISEMENT FOR AIM POSITION PN114
EXHIBIT #P1 FLASH FROM AIR TRAFFIC CONTROL DATED 06/03/2007 PN160
EXHIBIT #P2 CERTIFIED SHAFTING PN165
EXHIBIT #F5 AIRSERVICES MEMO PN203
EXHIBIT #F6 NEW ATC STRUCTURE PN203