BP2007/3200, Transcript of Proceedings [2007] AIRCTrans 451 (11 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17341-1

COMMISSIONER RAFFAELLI

BP2007/3200

s.451(1) - Application for order for protected action ballot to be held
Australian Licenced Aircraft Engineers Association, The
and
Qantas Airways Limited
(BP2007/3200)

SYDNEY

9.50AM, THURSDAY, 30 AUGUST 2007

Hearing continuing

PN1

MR G NORRIS: I appear on behalf of the Australian Licenced Aircraft Engineers Association with me I have, MR S PURVINAS, federal secretary of the association and MR P COUSINS federal president of the association.

PN2

MR G HATCHER: I seek leave to appear with my learned friend
MR P COLEMAN and I’m instructed by Messrs Freehills for the respondent, QANTAS Airways limited.

PN3

THE COMMISSIONER: Yes.

PN4

MR HATCHER: If it please the Commission there is a rather fundamental preliminary matter that we would wish to address at a time convenient to the Commission and can I also note that we’ve just been handed a rather voluminous document and we clearly haven’t had the chance to distil that as yet. I’m wondering if it would meet the Commission’s convenience at a point for us to perhaps outline the jurisdictional difficulty that we see in these proceedings and then afford us an opportunity to for our part, look at the document we’ve been handed and for our friend’s part an opportunity to consider their position and deal with that jurisdictional difficulty.

PN5

THE COMMISSIONER: Yes, we might get to that but first of all, any objections to leave being granted Mr Norris?

PN6

MR NORRIS: Given that there appears to be some sort of legal matter in regard to jurisdiction we don’t object.

PN7

THE COMMISSIONER: Yes, leave is granted and Mr Hatcher also wants to flag his jurisdictional objection, or put his jurisdictional objection, is that convenient?

PN8

MR NORRIS: We are happy to hear that first Commissioner.

PN9

THE COMMISSIONER: Yes, Mr Hatcher.

PN10

MR HATCHER: If it please the Commission I won’t trouble the Commission with all the authorities we have but the Commission will be familiar with the proposition that for a bargaining period to be a bargaining period for the purposes of the Act and for there to be an agreement for the purposes of the Act, the bargaining and the agreement must relate to matters that pertain to the relations of the employer and the employees as such. Now the evidence that’s been forwarded to us by our friends, indeed in their notifications, makes it reasonably clear we would have thought that the matter at issue between the parties is a question of our client contracting work out overseas and there is a well established line of High Court authority going back to 1968, such a claim does not pertain to the relations of the employers and the employees as such.

PN11

Commissioner that line of authority was considered recently by his Honour Justice Moore in the Federal Court in Construction Forestry Mining and Energy Union v Mount Lawley Operations Pty Ltd. His Honour there was considering whether a provision of an existing enterprise agreement could be enforced and it was a provision that dealt with the capacity of Mount Lawley Operations to contract the work out. His Honour whilst expressing some regret that such a claim was not to be regarded to a matter pertaining, found that it was bound by High Court authority to the effect that it was. Perhaps if I hand all these up to the Commission in one bundle once I’ve dealt with them.

PN12

If it please the Commission, it’s sometimes said as it was indeed in the proceedings before Justice Moore that a claim in relation to contracting, really is a claim in relation to the security of employment of the employees who may be affected by work being contracted out and there’s a useful exposition of the way in which that – or the reason why that does not pertain to the relations of employer and employee as such in again quite a historical High Court authority the Federated Clerks Union of Australia and the Victorian Employers and Others reported in 1984 volume 154 CLR at page 472.

PN13

I’m sure Commissioner you will recall that case, it was the case that dealt with the first of the two nation change and redundancy test cases in Victorian jurisdiction as it turned out. There, there was a claim for consultation where there were to be changes introduced that would have an impact on employment. The High Court in that case were keen to say a claim for consultation in relation to a prospective restructuring is about an industrial matter, but a claim about the restructuring itself is not a matter pertaining. It wasn’t the industrial matter in the terms of the legislation at that time.

PN14

Now if it please the Commission, lest there be any argument that we’re being too historical in our approach I remind the Commission that there’s a recent judgment of the High Court concerning the Act in it’s relevantly current format, Electrolux Home Products Pty Ltd and the Australian Workers Union and others. That’s recorded in 2004 volume 221 CLR at page 309. That case of courses concerned bargaining agents fee but in that case the High Court would say that the traditional approach adopted in the High Court authority to the question of whether a matter is an industrial matter for the purposes of the pre-existing legislation remains pertinent to the current definitions of pertaining to the relationship of employee and employer as such.

PN15

Commissioner the other matter that we would wish to draw to the Commission’s attention is simply the way in which this Commission approaches its task when asked to allow for a protected action ballot and we have a relevantly recent decision of his Honour the Vice President Watson in print PR973654 where his Honour distils the authority, in particular a decision of her Honour Senior Deputy President Acton to the effect that if the claim is in relation to a matter that doesn’t pertain to the relationship of employers and employees as such, then it is a claim for prohibitive content, and if it is a claim for prohibitive content then there can be no genuine bargaining for the purposes of the legislation and that of course has it’s inevitable consequence for the application.

PN16

Now Commissioner not to put too fine a point on it, we would have thought that that killed this application dead. But there is an entirely alternative source of authority for the proposition that this cannot be a genuine negotiation and that is pursuant to the provisions of the Trade Practices Act. I’m sure the Commission is aware of the history of section 45E of the Trade Practices Act, it was introduced to the legislation back in the seventies and followed on a dispute between the Transport Workers Union and Ameco a then existing oil company over a claim that Ameco should not contract out the transport work to an independent contractor, Leon Laidley Pty Ltd.

PN17

There were 45D proceedings affecting the Transport Workers Union and consequent upon the finding that the Transport Workers Union were guilty of a breach of section 45D of the Trade Practices Act, the Transport Workers Union ceased that conduct but entered into an arrangement with Ameco where Ameco would not – so they stopped the ban as it were but then separately entered into an arrangement with Ameco that Ameco would not provide Leon Laidley and it was in those circumstances that the legislature introduced section 45E of the Trade Practices Act.

PN18

I’m afraid we haven’t taken the step of reproducing the provision, but if I could just read it to the Commission. I won’t say it’s as difficult to distil as some of the provisions in the Workplace Relations Act but it does aspire to that Commissioner. The situations to which the section applies are described and relevantly an acquisition situation is a situation where a person has been accustomed and is under an obligation to acquire relevantly services from another person.

PN19

So in our case our client is acquiring services from Singapore Airlines in relation to the maintenance of its aircraft. Now subsection (2) says, subsection (3) I’m sorry:

PN20

In an acquisition situation the first person must not make an arrangement arrive at an understanding or make a contract with an organization of employees or an officer of an organization of employees if the proposed arrangement contains a provision included for the purpose or for purposes including the purpose of preventing or hindering the first person from acquiring or continuing to acquire such services from the second person.

PN21

So that makes it an offence for our client to enter into the arrangement that we are asked to enter into. Section 45EA of the legislation makes any such arrangement unenforceable and I think from recollection it is section 82 which makes – I’m sorry it’s section 80 in respect to injunctions and 82 in relation to damages that makes the organization who makes the claim as an accessory or someone who seeks to procure the breach of the Act viable both to injunctive relief and damages and in our respectful submission a claim that one engage in illegal conduct, unlawful conduct, cannot be a genuine claim for the purposes of the Act.

PN22

That in a nutshell is the jurisdictional difficulty we see in front of the union in their application and if it’s convenient then, we’d ask that we have the opportunity to consider the evidentiary material while our friends have an opportunity to consider their position in view of that. Sorry Commissioner, I haven’t in fact handed up the bundle.

PN23

THE COMMISSIONER: Does the proposed industrial action make reference to the contracted party which you’ve told me is Singapore Airlines?

PN24

MR HATCHER: It doesn’t Commissioner not expressly but in our respectful submission it doesn’t need to. If one has regard to the application the Commission will see that in the bundle in the order in which I received it there’s an annexure (c).

PN25

THE COMMISSIONER: Wait a second, yes.

PN26

MR HATCHER: And behind that document there is a notice dated 27 August 2007 on the applicant’s letterhead to all Qantas ALAEA members, notice of authorization is given to members to take industrial action in regard to supporting or advancing our claim for the securing of and maintaining aircraft maintenance work in Australia, and that appears to be a very clear reference to, don’t contract the work outside Australia. If one goes down to the actual resolution, the protected action so authorised is the banning of routine work, routine certification, or any release to service to aircraft nominated for normal service until such times as the said aircraft had undergone full detailed check inspection by the ALAEA engineers, licensed on the type of aircraft and so forth.

PN27

Finally and to ultimately cause such work to be brought back into Australia. Then Commissioner behind that document there is a statutory declaration and behind that a notice of resolution and if one has the resolution, the terms of it are at about point (7) on the page:

PN28

Following the identification of unacceptable maintenance practises on Qantas aircraft and the potential risk to the safety of pilots, flight crew and the Australian travelling public and the failure of Qantas and the regulator to act to ensure that thorough inspections have been carried out on these two aircraft before flying and then there’s the authorization.

PN29

Now if the Commission notes there the terms of the resolution was that they may not be directed to expressly to contracting out of work. The matters they are directed to do not relate or do not pertain to the relations of employers and employees as such. Indeed they involve relations between third party licences and we say that is - - -

PN30

THE COMMISSIONER: Is pilots and travelling public you say that that doesn’t pertain to the employer employee relationship to these employer relationships?

PN31

MR HATCHER: Certainly we say that but we particularly draw attention to the role of the licencing authority, CASA in the terms of the resolution. Industrial action taken pursuant to a resolution such as that cannot pertain to the relations of employers and employees.

PN32

THE COMMISSIONER: Yes, okay.

PN33

MR HATCHER: Thank you Commissioner.

PN34

THE COMMISSIONER: You don’t want to respond right now, because we’ll adjourn – well they’re going to look at your stat dec Mr Norris and you might wish to consider what they’ve put, but anyway I’m in your hands about what you want to do?

PN35

MR NORRIS: Commissioner, we will take a short break if it pleases the Commission. But I will just in preliminary fashion flag some of the issues that have arisen in Qantas submissions. Firstly the issue of the actual demand and the intention of the demand. It appears that Qantas would have you imply a term into the actual claim that it was directed at contractors, but in effect it is very plain in its words in the claim which appears in the bargaining period notice.

PN36

The claim is for the securing of and maintaining aircraft maintenance work in Australia.

PN37

Now maintaining aircraft maintenance work in Australia pertains to the existing work that is done in Australia by the employer and provided to the employees within Australia and that’s wholly within the scope of the work that is currently performed within Australia. Now there is no mention or prohibition within that claim or implied term within that claim, that it is a prohibition on the use of contractors, because in fact as this Commission will well know one of the major contractors to Qantas is ForeStaff who employ a workforce of some 900 people at Avalon who perform the work on Qantas aircraft in Australia. The Commission would be well aware too that it was the ALAEA that participated in the establishment of that facility, and in fact the establishment of that contractor in the industry.

PN38

So this claim is not in regard to the prohibition of work done with any contractor. The securing of and maintaining aircraft maintenance work in Australia goes back to the common law principle of the ancient master and servants relationship where the master would in fact supply the work and there was an implied and in more recent times, there have been cases where people would attempt to imply a term that the master has a duty to supply meaningful work. That of course is still open to some debate, but in fact, with the master supplying the work the employee or the servant as it was is obliged to perform the work.

PN39

Now the securing of goes to the future work that the employer would require of the employee to perform and the demand by employees for the employer, or the master to secure such work. That work may not or may be or may not be, work performed anywhere else in the world for that matter, on any type of aircraft. For instance, an issuing point between the parties at the moment, is the securing of and maintaining the aircraft maintenance work in Australia of the A380, which is a new aircraft being introduced in Australia. So it’s actually the securing of the aircraft work and not the contract work as such. It’s the work on the aircraft that is being asked to be secured.

PN40

We make that very subtle but fine distinction I regard to whether or not there is any intention of the parties, or the ALAEA in that matter to restrict the work of contractors when in fact probably 50 per cent of the work that’s currently performed in Australia is done by contractors to Qantas of which the ALAEA has many members. Having flagged that there is another issue we wish to flag and it is a jurisdictional issue. That is the question of whether or not, the action so requested, or the action the industrial action that is proposed is in fact industrial action.

PN41

The question arises in regard to the definition of industrial action within the Act. The meaning of industrial action under section 420 and I can read it but I’m sure the Commission is well familiar with the section. Under section 420(1)(a)(b)(c) and (d) and the issue there is that in fact in the lack of a determination of whether or not this action is in fact industrial action, the ALAEA saw fit to make an application for protected industrial action being the safest way to do it given the nature of the Act and the nature of the federal government’s intention for the Act.

PN42

But the real issue here is whether or not the actual withdrawal of certification by the employees being LAMEs at Qantas is in fact part of their day to day duties and part of their obligations under the Civil Aviation Act 1998 and the regulations thereof to perform licensing as an authorised person under the employer system of maintenance and use their discretion to certify or not to certify for these aircraft. The relevant provisions of the Civil Aviation Act in the Civil Aviation Regulations are regulation 42(c) which nominates the type of people who may certify for the air worthiness of maintenance carried out on aircraft.

PN43

A licenced person is one of those people whether that be under the employer’s system of maintenance made pursuant to regulation 30 of the Civil Aviation Act. It also applies to the day to day duties and obligations of the licenced aircraft engineer in signing a release or a maintenance release on aircraft which would be pursuant to section 43. Now section 43 of the Civil Aviation Regulations, in particular subclause 13 says:

PN44

A person shall not sign a maintenance release to be issued by virtue of paragraph 7(a) in respect of aircraft if a person considers that the aircraft is in a damaged condition or is defective. The damage is major damage or the defect is a major defect as the case may be and the damage or defect is not a permissible unserviceability.

PN45

And (b):

PN46

The person considers that maintenance carried out on the aircraft may have adversely affected to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component or any of the system of aircraft components installed in the aircraft –

PN47

And so on. 13(a) says that:

PN48

A person must not contravene sub regulation 13 –

PN49

And it prescribes penalty units for the person who would – or certifies for a maintenance release if they are aware that that situation may exist. Now what we say here Commissioner is that the situation is that here is a licenced aircraft engineer being the authorised person under the employer’s system of maintenance, as an independently licenced person exerts an independent discretion on a day to day basis as part of their duties to the employer in their duties under the Act as to whether or not they should certify for a particular aircraft or whether or not they should inspect a particular aircraft based on a reasonable suspicion that there may be a defect on the aircraft. So the issue or an issue that may need to be addressed by the Commission is in fact whether or not the employees in apply for a protected action ballot are entitled to effectively do this anyway - - -

PN50

THE COMMISSIONER: Well the only trouble with that is that if I agree with you, then there’s probably reasons by the Commission ought not have a ballot, because it’s a ballot for taking industrial action.

PN51

MR NORRIS: What that would mean Commissioner is that our members on any one day would exert that discretion on these aircraft.

PN52

THE COMMISSIONER: Yes, but why are we here if you’re right on that?

PN53

MR NORRIS: Well the question is Commissioner we don’t know whether we are right on that.

PN54

THE COMMISSIONER: I think and I - - -

PN55

MR NORRIS: The ALAEA is not the appropriate body to determine that.

PN56

THE COMMISSIONER: I understand that and I understand that because of that risk, your people, in other words the risk that you are wrong, you’d want the ballot. But in determining the ballot I really should steer clear of that argument shouldn’t I because if I agree with you, I don’t know why I’m here.

PN57

MR NORRIS: That’s - - -

PN58

THE COMMISSIONER: I’m better off saying I don’t agree with you and let’s get on with the ballot.

PN59

MR NORRIS: Well if that’s the case, that’s the case.

PN60

THE COMMISSIONER: I just think – well anyway I’m in – you still want to adjourn for the other?

PN61

MR NORRIS: Yes, well we’d like - - -

PN62

MR HATCHER: Commissioner, it may assist if I just reply in brief to that last little exchange between my friend and the Commission. Just to this effect, my friend says it’s not industrial action and the response to that is obvious, they withdraw their application we can all go away. We would contend it clearly is industrial action and there will be obvious consequences in the litigation that will follow were the course of conduct that my friend foreshadows to be embarked upon.

PN63

THE COMMISSIONER: All right we’ll adjourn, half an hour?

PN64

MR HATCHER: That would suit us Commissioner.

<SHORT ADJOURNMENT [10.17AM]
<RESUMED [10.51AM]

PN65

THE COMMISSIONER: Yes.

PN66

MR NORRIS: It appears to us that the jurisdictional objection rests on fundamentally two legs and that is that the claim made under the bargaining period notice for the securing of and maintaining maintenance work in Australia has some implied meaning as to being a restriction on contractors. The only way the ALAEA could effectively define the ambit of the claim, would be to bring evidence from Mr Cousins being the federal president of the association and being party to the negotiation of the context of those negotiations. But I will say this.

PN67

We do submit Commissioner that effectively there is a significant jurisdictional issue here because the issue is whether or not the Workplace Relations Act Australia can in fact apply to arrangement external to Australia. What Qantas is saying is that look this claim is designed at putting restriction on an overseas country to do the work and we say well that’s within the objects of the Act because the objects of the Act in section (3) part (1) states:

PN68

The principle object of this Act is to provide a framework for cooperative workplace relations which promotes the economic, prosperity and welfare of the people of Australia.

PN69

That’s the principle object. Then it goes to the methodology as to how that can happen by:

PN70

(a) encouraging a pursuit of high employment, improving living standards, low inflation and international competitiveness through high productivity and flexible and fair labour market.

PN71

Now we say just within those two headings the ALAEAs claim is within the scope of the Act. If it was a claim to prohibit the use of contractors in Australia then it may be a problem. But the Act does not provide any prohibition or have any jurisdiction in regard to contractors from overseas.

PN72

THE COMMISSIONER: Well I’m not sure about that.

PN73

MR NORRIS: If the contractor works in Australia then that may be a different matter.

PN74

THE COMMISSIONER: I’m not necessarily saying that Mr Hatcher is right, but section – the Trade Practices Act, and that’s a second part of their thing – has operation and relates to foreign corporations, otherwise it would be– this is a great trading country, it would be meaningless.

PN75

MR NORRIS: Well the question here is Commissioner, is whether this application is made in relation to the Trade Practices Act, and whether the Trade Practices Act in this can override the Workplace Relations Act.

PN76

THE COMMISSIONER: Well that might be another argument, but the idea that if the – if it wasn’t – if it was a ban on ForeStaff you’re out, but if it’s a ban on Singapore Airlines you’re in, I just simply because of where they operate or where there business – I just think there is no reason for that. The trouble with the objects of the Act I mean – Mr Hatcher will now get up and tell me that the prosperity of Australia and it’s people is occasioned by shareholders getting good returns on their money if they can get it done cheaply somewhere else. We should all think that’s great. That’s the trouble with that and also they’d probably say well people their prosperity can be gained by something else other than banning this work. I’m not saying it is a ban on that work, but anyway sorry.

PN77

MR NORRIS: We sort of digress in a way but the I mean the point here is Commissioner, there is no evidence before the Commission that in fact the claim is a ban on contracting out. The scope of securing and maintaining work in Australia comes down to basically what you’ve exactly said. It comes down to the returns to shareholders the creation of high employment and all those balancing things that go within it. So the claim itself is not necessarily a restriction on contracting out. I mean the settlement of the claim may well be that there is some contracting out so as to maintain – the organization can exist in whatever form, so the existing employees and employees in the future have secure employment. That may be the resolution of the claim so the intended resolution of the parties of the claim in effect defines the claim within itself.

PN78

THE COMMISSIONER: This de-check, that’s the checks some of them are done overseas?

PN79

MR NORRIS: These are 747 400 aircraft where de-checks are being performed overseas right.

PN80

THE COMMISSIONER: And you want that de-check done here?

PN81

MR NORRIS: The ALAEA has always maintained that Qantas should spend the capital in Australia to have that work performed in Australia.

PN82

THE COMMISSIONER: Right and if Qantas wants to do de-checks in Singapore, all you’re saying is that when they come to Australia we want to do another de-check. There’s nothing wrong with that is there?

PN83

MR NORRIS: We are not saying we want to do another de-check, as a matter of fact we are saying we want to do less than a de-check. What we are saying is that we want to carry out an inspection of the aircraft to ensure that it meets Australian standards. Because the dichotomy that arises that on a day to day basis is in the duties of a licenced aircraft engineer in what’s known as the flow on effect. There’s a matter of flow in regard to competency and the understanding of competency and the certifying for the competency.

PN84

The Civil Aviation Act provides a scheme whereby you certify effectively and you certify for work that has been carried out competently. Now if you suspect that the work has not been carried out competently you don’t certify or you have it carried out. Now the issue here is that we have people in history you’ve had people in heavy maintenance at Qantas who perform the work who are trained within Australia under Australian standards and certify within the Australian scheme, so that when that aircraft flies and it lands again, the next person who certifies unless there is a defect reported is confident that that aircraft actually went out certified by competent people, the work performed by competent people, and on their certification and the trust, the trust within the system and that’s what it comes down to, is that element of trust that they can then certify again and meet their obligations under the Act.

PN85

But if that second person who certifies for a maintenance release is not satisfied and the trust is in effect broken that person has the right to have that aircraft inspected. Now what we are saying is that we’re not restricting the work that’s gone overseas and our claim may well be resolved by certain productivity that is delivered, flexibilities that are delivered, certain rostering arrangements, all of those sort of things that may be delivered to the company so it makes it better for the company to do the work in Australia and have less outsourcing of work overseas.

PN86

Now from time to time, as has been the previous situation in Qantas before the new regime of management came in Qantas has from time to time with the cooperation of the ALAEA in what is called the blip situation where a spike happens in the production program, not a regular occurrence and it’s not programmed, it’s effectively because of emergency type situations within the schedule of aircraft that the ALAEA has cooperated with aircraft going overseas from time to time, to New Zealand, to Hong Kong, to Europe, and to Singapore and to Malaysia at various points of time.

PN87

We don’t like it and we believe all that work should be accommodated within Australia but we don’t in effect ban it as such. In effect if you look at the nature of the industrial action, the nature of the industrial action which goes back to the claim, is not the banning of the aircraft and it’s not the banning of the work done on the aircraft by the overseas contractor, it’s in effect the demand and the withdrawal of certification, so the aircraft can be inspected and that’s what the nature of the industrial action is.

PN88

THE COMMISSIONER: When you end that and say, and to ultimately to cause such work to be brought back to Australia, what does that mean?

PN89

MR NORRIS: Well eventually we would expect and it’s a reasonable expectation by employees within Qantas that the employer would be able to provide all its work to its employees within Qantas and we say that works on a number of levels. One, first of all it does give them security of employment with the employer. Two, it does ensure that their wages are paid on a day to day basis and that they have the opportunity for higher wages. It does ensure that the certification system has the trust within it from a licenced aircraft engineers point of view and it has the benefit to the welfare of the Australian people, by the multiplier that’s generated the economic multiplier that’s generated by the work being carried out in Australia.

PN90

There is anecdotal evidence to suggest that the multiplier from a heavy maintenance facility in Australia in the general economy is something between three and a half to four to one. Now if we were to look at the general welfare of the people of Australia in regard to the objects of the Act and the way that worked and if we ran the argument well the shareholders may say it’s better for us to get more money, well we should have more money through the shareholders. The multiplier for that is not as great as having the facilities operating within Australia.

PN91

In fact it limits the spread of the income and the capital to a very select group. Now that’s a fundamental philosophy that unions have that is different to management. Now what we say is that our claim in particular is aimed at and we don’t shy away from it, to getting as much work in Australia as possible and performing that work in a competitive manner and as productively and efficiently as possible. So we don’t – we say that our claim is not a restriction in any way on the company contracting out because the company at the end of the day will decide what it’s going to do and effectively there can’t be placed in the certified agreement a restriction on contracting out.

PN92

It is our view whether that be right or wrong that there may – obligations may be placed on the company in regard to consultation in regard to contracting out and what arises from that and the parties agree on as to what and how these things take place is as they agree on the day. But we say fundamentally that our claim effectively is not a restriction on contracting out and therefore cannot relate to prohibitive content. Therefore the industrial action, or protected action that is in pursuit in support of the EBA claims, and I say that plural does not necessarily have to relate directly to any one particular claim. It can relate to the claims in general in pursuing that, or it can relate to an individual claim for that matter. We will call Paul Cousins.

PN93

MR HATCHER: We have a fundamental jurisdictional point as I think I outlined, perhaps might be dealt with before we go into evidence.

PN94

MR NORRIS: We object on the basis that Mr Cousins evidence goes to the jurisdictional point.

PN95

MR HATCHER: Well Commissioner, what has fallen from my friend, if the evidence is to support the submission we’re content to take the submission at it’s highest and say that’s what’s fallen from him, even makes our jurisdictional contention clearer than perhaps it appears on the papers themselves.

PN96

THE COMMISSIONER: Well Mr Hatcher I don’t they just want work in Australia, they are not banning work overseas, that’s your business.

PN97

MR HATCHER: Well Commissioner there is a resolution, we can only deal with the application that’s before us. Can I say a few things about what’s fallen from my friend. Firstly, my client does not want any of the applicant’s members to certify a plane safe that is not safe. My clients principal preoccupation is to ensure all it’s aircraft are appropriately serviced and certified. Now as my friend says, that’s been done overseas previously and it’s been done in Australia previously. It’s never been the position of the members of my friend’s organization who are employed by my client that overseas certification is somehow less satisfactory than Australian.

PN98

Were it otherwise members of my learned friend’s client, or my learned friend’s association, would presumably not be certifying all those aircraft operated by other airlines who are serviced on contract by our client. Putting that to one side, the claim that is before the Commission has provided as support for the claim a resolution. The resolution is a resolution for industrial action, and it is the only industrial action that is authorised as it needs to be under the Act. My friend says you know, the industrial action doesn’t have to relate to any claim. Well that may be, but the industrial action on which they move, the reason they want the industrial action, is supported by a motion.

PN99

The motion that they provide to us is in these terms:

PN100

Following the identification of unacceptable maintenance practises on Qantas aircraft and the potential risk to the safety of pilots, flight crew and the Australian travelling public and the failure of Qantas and the regulator, CASA to act to ensure that thorough inspections have been carried out on these two aircraft before flying the federal secretary is authorised by the federal executive to authorise ALAEA members proposed to be covered by the new EBA to take protected industrial action for pursuit of the EBA claim securing of and maintaining aircraft maintenance work in Australia.

PN101

Now Commissioner, it’s authorised on a basis that doesn’t pertain to the relations of employers and employees as such.

PN102

THE COMMISSIONER: Why?

PN103

MR HATCHER: The identification of unacceptable practises on Qantas aircraft and the potential risk to the safety of pilots, flight crew and the Australian travelling public. That’s not the safety of any flight engineer. That’s a matter quite foreign to the relations of the employer and the employee in that capacity. They may be noble motives we don’t suggest they are not. But they are not matters that pertain to the relations between licenced engineers and our client. They are not matters that can be the subject of protected industrial action.

PN104

THE COMMISSIONER: But the maintaining the carrying out of checks,
de-checks and the maintaining of aircraft in Australia why doesn’t that pertain to the relationship between LAMEs and Qantas?

PN105

MR HATCHER: Because Commissioner it is entirely a matter for the company how and where it will have work performed. The conditions under which work performed in Australia by LAMEs is a subject that pertains to the relationship between LAMEs and our client. That was the point in VEF, it is entirely – I’m sorry Federated Clerks Union and Victorian Employers Federation, it is entirely up to the employer to decide what the work task will be.

PN106

Once the employer decides to change the work task, it is an industrial matter, the impact that any change in that work task will have on employees. The conditions under which that work task is to be fulfilled is an industrial matter. But what the work task will be is not a matter that pertains to the relations of employers and employees as such. Indeed in Justice Moore’s judgment he extracts a very helpful passage from the High Court authority, the Queen and Commonwealth Industrial Court ex parte Cocks. I wonder Commissioner do you have that report there, it’s volume 1997, volume 79 Federal Court Reports of 96, it is one of the authorities I handed up earlier.

PN107

THE COMMISSIONER: Are you looking at ex parte Cocks, or are you looking at Mount Lawley?

PN108

MR HATCHER: No, CFMEU v Mount Lawley Operations.

PN109

THE COMMISSIONER: Yes, I’ve got that sorry, and you referred to Cocks at what page?

PN110

MR HATCHER: At his Honour deals with it at page 107.

PN111

THE COMMISSIONER: Yes, yes.

PN112

MR HATCHER: From point (b) the Commission will see there’s a paragraph starting however, if one goes down to the fourth line at the end of it this leads to a consideration of Queen v Cocks:

PN113

In that matter the High Court was called upon to consider the validity of a clause in the Dry Cleaning and Dyeing Industry Award. The validity of the clause arose in proceedings for prerogative relief against inter alia the Commonwealth Industrial Court which it found the prosecutor guilty of a contravention of the clause. The relevant provision provided that the employer bound by the award shall not cause any work to be done for him outside his workshop or factory unless such person is the holder of a current outdoor workers permit.

PN114

If I could pause there to say that’s to adopt my friend’s formulation earlier, that’s not a – you can’t contract out it’s a you can only contract out to someone with a particular licence, not dissimilar to the claim in this case. The leading judgment was that of the Chief Justice Mr Garfield Barwick and Justice Taylor and Justice Owen:

PN115

Their Honours first construed the clause they concluded it prevented an employer bound by it from entering into a contract not being a contract of service with another person to do the relevant work.

PN116

His Honour then goes through the minority judgments – I’m sorry they are not minority, they agree but provided their own reasons. His Honour at point 9 on the page returns to the joint judgment and went on to consider:

PN117

Whether such a clause concerned a matter pertaining to the relations of employers and employees which reflected the language used in the definition of industrial matter. Their Honours concluded it did not. During the course of their discussion of this issue they refer to the capacity of the Commission to make an award which not only prohibited the engagement of independent contractors but also regulated the terms of their engagement. Insofar as it had been argued that the regulation of the employment of independent contractors might impact upon the terms and conditions on which the employees worked their Honours said, the question whether the practice of employing independent contractors in any particular industry is undesirable and should be forbidden or it regulated is a matter for the appropriate legislature or legislatures and not for the Commission. It is comparatively plain that their Honours took the view that the regulations were a manner in which independent contractors performed work apart from any prohibition on them doing so was not a matter pertaining to the relations of employers and employees.

PN118

Now if it please the Commission however one comes at it, and we’ve had a few goes at the formulation of this one, it is not a matter pertaining to the relations of employers and employees. It is a question of how our client is to have heavy maintenance work done. Whether it can continue as it’s done in the past to have as my friend characterises it a blip done overseas or whether it’s bound to stick an aircraft on the tarmac cause the disruption that that flows to its commercial operations and its customers and wait until it has sufficient capacity to deal with the blip.

PN119

THE COMMISSIONER: Yes, thank you for now Mr Hatcher. Mr Norris I have a bias always in favour of allowing the Act to operate including people being able to conduct protected action, it seems to be almost encouraged. However, there have been some significant jurisdictional arguments and I’m attempting to come to grips with them a bit and perhaps finesse our way through whether or not 45E applies or doesn’t and then the other question. A ballot such as this is a serious matter for your organization and proceedings can lead to further proceedings et cetera and we haven’t got to the subject – sorry apart from the jurisdictional argument, we haven’t got to whether the ballot application is – ought go ahead.

PN120

It seems to me that on its face everything seems to be pretty well in order including the fact that negotiations haven’t ended but that as long as they’ve been conducted on a bona fide basis, I wouldn’t have thought that precludes protected action being taken, because you do say in your statement, or Mr Cousins does, negotiations are proceeding but we are entitled to do something about some items. So we haven’t got to that, I wish to float with you Mr Norris whether you would be happy to have this matter adjourned either until tomorrow or Monday because I think it may need – you might wish to consult counsel, your own counsel that you use from time to time and know Ms Doust and others to be able to sort of assist me – and I’m not saying that well – because these matters have just been raised and they don’t normally get raised in the way Mr Hatcher has. So I’m just wondering whether you wish to consider that and maybe talk to Mr Purvinas and Mr Cousins?

PN121

MR NORRIS: If it please the Commission can we have five minutes?

PN122

THE COMMISSIONER: Yes, okay I’ll adjourn for five minutes.

<SHORT ADJOURNMENT [11.17AM]
<RESUMED [11.29AM]

PN123

MR NORRIS: Yes Commissioner, we’d seek an adjournment until Monday.

PN124

THE COMMISSIONER: Yes, well you have problems with that, other than it’s APEC and we are going to be struggling to get into the city.

PN125

MR HATCHER: I’m also overseas Commissioner.

PN126

THE COMMISSIONER: You’ll appreciate, you’ll have to make do. We’ll make arrangements Mr Norris for the transcript to be expedited so you’ve got it for whatever further consideration. I think we’ll list it for perhaps 10 o’clock Monday. On that basis the proceedings are adjourned.

<ADJOURNED UNTIL MONDAY 3 SEPTEMBER 2007 [11.30AM]