C2006/3250, Transcript of Proceedings [2007] AIRCTrans 55 (13 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16441-1

COMMISSIONER RAFFAELLI

C2006/3250

AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION, THE
AND
QANTAS AIRWAYS LIMITED
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3250)

SYDNEY

10.10AM, WEDNESDAY, 31 JANUARY 2007

Continued from 30/1/2007

Reserved for Decision

PN2054

MS L DOUST: Thank you, Commissioner. Commissioner, we concluded yesterday afternoon with a discussion about Mr Field’s position. Since then we’ve been back to Mr Field, had some discussions with him. I think Qantas have been in contact and there’s some ongoing discussions about the precise nature of any offer that might be made. So we leave it to those discussions for the moment to deal with that process.

PN2055

THE COMMISSIONER: Okay.

PN2056

MS DOUST: I’m content to just proceed with my submissions if it’s convenient to you, Commissioner.

PN2057

THE COMMISSIONER: Yes.

PN2058

MS DOUST: Commissioner, as I indicated at the outset our application is brought pursuant to part 2 of schedule 7 of the Workplace Relations Act 1996 as it’s amended and I think that’s clause 2(1)(e) and that section allows the parties to a pre-reform certified agreement to access the old dispute settling provision in section 170LW of the Act as previously amended.

PN2059

THE COMMISSIONER: Yes, proceed. I am listening.

PN2060

MS DOUST: Sorry, I thought you were searching for something in particular, Commissioner.

PN2061

THE COMMISSIONER: No, I’m just organising myself. But I’m listening and I know you’re following your submissions so far. Yes.

PN2062

MS DOUST: Commissioner, this is a dispute about clause 37 of the Licensed Aircraft Engineers Qantas Airways Limited Enterprise Agreement Number 4 1998-2001 and I'll refer to that for ease throughout the processes as EBA 4. Clause 4 of that EBA which continues, in effect, empowers you to determine matters in dispute between the parties. The relevant provisions of clause 37 which deal with redundancy, clause 37.4 which provides that the company shall take reasonable steps to arrange or assist in obtaining suitable alternative employment for employees who would otherwise be retrenched. Clause 37.3 provides that the company and the association agree that where practicable retraining opportunities will be provided to employees declared redundant.

PN2063

There is a secondary or alternative issue which is in dispute between the parties and that is the matter of Qantas’s obligations, if any, to hear appeals pursuant to clause (l) of part D of EBA 4, but the bulk of the matter before you, Commissioner, concerns the question of reasonable steps to be taken by Qantas in relation to the redundancies arising as a result of the closure of the Sydney heavy maintenance department. And in particular the matter concerns the proposals put by the ALAEA to give effect to Qantas’s obligations, the first proposal being that the remaining redundant ALAEA members be used to acquit the excessive levels of leave accrued by LAMEs at Sydney airport and second that Qantas review and extend the process that redeployment had entered into providing retraining when necessary in order to accommodate the remaining six employees.

PN2064

Now, it is not disputed that in the period from the announcement of the closure of Sydney heavy maintenance on 9 March 2006 until about 1 August 2006 that Qantas took a number of steps to attempt to accommodate the employees who were targeted for redundancy as a result of the closure. Nor do we dispute that those steps were successful in obtaining acceptable outcomes for many of the retrenched employees. What is at issue is whether in order to conclude its obligations Qantas is obliged to make further efforts to assist the employees who are not able to be accommodated by its strategies and that might roughly be put in this way, Commissioner, whether that obligation to take reasonable steps obliges them to continue on the process that they set upon.

PN2065

So the point at which the process was drawn to a close is really in dispute. In order to take reasonable steps as required under EBA4 we submit that Qantas first of all should be prepared to adopt any reasonable arrangement for the redeployment of its retrenched employees whilst ever there remains an employee undeployed within the business, if I can use that term. Second of all in order to take reasonable steps we say Qantas has an obligation to give real and substantial consideration to proposals put by the ALAEA. Thirdly in order to take those reasonable steps we say it has to give real and substantial effect to its commitments in relation to retraining such as they are contained in clause 37.3 of EBA4 and in the agreement that was reached with the ALAEA in early April 2006.

PN2066

And that agreement as you will recall, which is at DR4 to Mr Ratcliffe’s statement, contains clause 4 which while stating that the assessment of suitable skills and experience in its redeployment process was to be at the sole discretion of the company training in accordance with the redundancy agreement may be offered to redeployees to address skills deficits. And I'll touch on the evidence later that referred to the training that was provided by Qantas throughout the process. We also say that in order to acquit its obligation to take reasonable steps there should be built into the redeployment process sufficient flexibility and discretion to deal with the compassionate circumstances of particular employees.

PN2067

And we have indicated in our submissions put to you earlier, Commissioner, in determining what reasonable steps are within the meaning of clause 37.4 we say you are entitled to have regard to the facts and circumstances of a particular case. For example, Commissioner, you may consider that in the event of a redundancy process concerning a small group of employees that the reasonable steps be taken in that event may be different from a redundancy affecting a much larger group of employees. The reasonable steps may differ in circumstances where a particular unit is downsizing from where a particular unit is being closed altogether. It really depends upon the circumstances of the case.

PN2068

And in the current circumstances we say there’s a number of factors that should be had regard to in considering what are reasonable steps. The first is Qantas size and its capacity across its workforce to accommodate retrenched employees. Second that the length of service and the skills of retrenched employees or, sorry, redundant employees and we say that’s an important factor in this matter because there’s a number of employees with very long, loyal service to the company. Third what needs to be considered is the number of employees being retrenched, the personal circumstances of the retrenched employees, as a general principle the desirability of accommodating volunteers where possible, the obligations under the enterprise bargaining agreements in general and further - and I took your attention to this early in Mr Ratcliffe’s evidence, Commissioner - Qantas’s own stated code of conduct which commits its managers in dealing with its employees to have regard to the highest legal standards and to seek to comply not just with the letter of the law but with its spirit. And I think that became ALAEA 16 if I’m correct.

PN2069

THE COMMISSIONER: Yes.

PN2070

MS DOUST: The proposals which were put by the ALAEA which really were the subject of these proceedings are contained in annexure PC4 to Mr Cousins’ statement and that is ALAEA 7. I’d like to go to that briefly if I might.

PN2071

THE COMMISSIONER: Yes.

PN2072

MS DOUST: And Commissioner you will recall that this letter came at around about the time that employees were being called in for a second interview where it became apparent that Qantas was moving to close off the redeployment process that it commenced after the announcement of the closure. And you’ll see in that letter which is from Mr Pervenous, the federal secretary of the association, he seeks an urgent meeting in an attempt to explore every avenue to secure employment for the 20 or so remaining members at that stage. He alludes to a number of specific avenues of obviate the need for any forced retrenchment and he puts clearly to Qantas the proposals which had been discussed in these proceedings which are in short first of all using the remaining redundant LAMEs in order to acquit the excessive amounts of accrued annual leave, second of all to facilitate redeployment by continuing the process of transferring volunteers from Sydney ACS to Brisbane ACS and allowing the Sydney heavy maintenance employees to back fill those Sydney ACS positions.

PN2073

And, Commissioner, that wasn’t a novel suggestion for Qantas because it’s clear from the evidence of Mr Ratcliffe that, and I think this was about early April or some time in April I think his evidence was, at paragraph 30 he says:

PN2074

We did facilitate the creation of a number of additional Sydney ACS vacancies by allowing some Sydney ACS employees to job swap into Brisbane ACS positions which were made vacant through a Brisbane ACS EOI process.

PN2075

So it wasn’t a revolutionary proposal that was put to Qantas at that point, it was simply the continuation of something that had happened earlier on in the piece. It was then and it remains the position of the ALAEA that Qantas is obliged by clause 37 to explore every avenue to secure employment for the retrenched LAMEs. And the fundamental reasons for Qantas’s opposition to the proposals were made clear in the meeting on 3 August 2006 and the notes to that meeting were annexed by Mr Ratcliffe and they are DR6. It’s clear from those notes, Commissioner, that the reasons for opposition to the ALAEA proposals are as follows. The first is this one, the argument which in that meeting and otherwise appears to have mainly been articulated by Mr Ratcliffe but to offer ACS roles to the remaining employees would be unfair to the employees who have already been redeployed or accepted voluntary redundancy and I'll refer to that as the unfairness argument.

PN2076

Now, I think that’s put actually in that meeting about the ninth page in at the bottom of the page Mr Oldmeadow, the initials IO.

PN2077

THE COMMISSIONER: Yes.

PN2078

MS DOUST: You can see there he says a lot of people had to take decisions. Following on over the page:

PN2079

Guys that are left shouldn’t get priority for working.

PN2080

THE COMMISSIONER: Yes.

PN2081

MS DOUST: The second argument which was mainly articulated by Mr Harris in these proceedings is also articulated by him in the meeting on 3 August. Going back about two pages in the notes of the meeting they record Mr Harris saying something to this effect - sorry, Mr Pervenous says something to this effect:

PN2082

Got people in Brisbane want to go and people in base want to go to Brisbane.

PN2083

THE COMMISSIONER: Yes.

PN2084

MS DOUST: That’s about the seventh page, the middle of the page. MH which is Mr Atwell-Harris.

PN2085

Not the move but the level Sydney can take, absorbed enough people. SR has attributed it as requiring -

PN2086

And I think that’s Steven Re:

PN2087

Had any issues so far. Mr Atwell-Harris recorded it as responding no. That’s why I think it’s appropriate to stop now. Absorbed more than we thought.

PN2088

So that was the position that was put at that stage and I will make some comment later when I deal with these areas separately as to the possible basis upon which that could have been put to the union at that stage shortly after receipt of the proposal. Now, in our submission you are entitled in dealing with this matter to explore whether the basis for Qantas’s opposition to those proposals is sound.

PN2089

THE COMMISSIONER: Yes.

PN2090

MS DOUST: Because we say that Qantas is obliged to explore all reasonable avenues it follows from that that we say that a refusal by Qantas not based in reason could not be an answer to a proposal that was put by the ALAEA. So we wish to explore and we say you’re entitled to explore whether there’s a sound and reasoned basis for Qantas’s opposition to the proposals and we say if Qantas has declined to explore rational proposals for reasons which don’t bear scrutiny then that refusal would be unreasonable in the sense that it doesn’t have a rational or reasoned basis.

PN2091

It seems to me that those two arguments are the hurdles that the ALAEA must overcome in order to put its case and so the bulk of my submissions will be directed to those arguments. The first argument that I wanted to address is this, it’s the unfairness argument. Now, that argument is based on the notion that to accommodate the remaining employees now would involve changing the rules. When he was probed about the rules Mr Ratcliffe’s only answer as to what the rules could be was this:

PN2092

There are no jobs in ACS.

PN2093

Now, with all due respect to him he misunderstands the nature of what a rule is. That statement could not be considered a fundamental rule in a redeployment process. A fundamental rule in a redeployment process might be that there is a particular procedure to be adopted for assessing employees to be retained or retrenched. A fundamental rule might be entitlement to a particular appeal process. A fundamental rule might be no employee shall be financially disadvantaged. Those sorts of things are rules. The statement that there are no jobs in ACS is not a rule, it’s simply a factual assertion made by Qantas.

PN2094

By the way, it’s a factual assertion that we dispute having regard to the annual leave figures, but that’s not pertinent for this argument about whether or not the rules have been changed. To the extent that it might be suggested that it was always understood by the redundant heavy maintenance LAMEs that the absence of ACS positions was an unchanging element in the environment that pertained with the closure of Sydney heavy maintenance. That assertion is not supported by the evidence before you, Commissioner. At no stage did Qantas make it clear to LAMEs generally that it wouldn’t consider any further proposal to alleviate the redundancies, Qantas never made it clear that the door was closed, not generally, and it didn’t make it clear to all LAMEs that no further EOI, expressions of interest, from ACS would be considered.

PN2095

Now, if you look at what was communicated to LAMEs generally as a group, those made redundant as a result of the closure, in order to assess what their reasonable expectations were you have to go to the material which is in
Mr Ratcliffe’s affidavit and in particular to the presentation that was made on
9 March 2006 and that’s DR1. At page 8 of that document, Commissioner, you will see there’s a page:

PN2096

What does this mean for Sydney heavy maintenance? Heavy maintenance operations in Sydney will commence winding down immediately and cease on 31 May 2006.

PN2097

That was communicated to all LAMEs. A fairly clear position.

PN2098

Approximately 420 positions including 70 apprentices will be retained. Some of these will be transferred to ACS or component maintenance.

PN2099

So some people are going to be transferred to ACS.

PN2100

There are approximately 140 redeployment opportunities in various locations, ACS Sydney, Brisbane, Qantas Defence Services, Avalon.

PN2101

The second to last point:

PN2102

A number of compulsory redundancies will be unavoidable, however attempts are being made to mitigate and minimise compulsory redundancies.

PN2103

So Qantas communicated that it was making attempts to avoid compulsory redundancies. My friend observes, I think it’s sotto voce, that mitigate and minimise compulsory redundancies is somewhat different to avoid. I take her point. Certainly LAMEs would have taken from this that 1 was going to be making efforts to redeploy people into different positions and minimise compulsory redundancies. So avoid having to force people out the door at the end of the day, that it would employ various strategies presumably. Page 11 of that communication refers to a process of consultation with the unions and any self respecting red blooded LAME from Sydney heavy maintenance would have taken from that that unions would be negotiating with Qantas for the best possible arrangement that they could secure for their members. It’s further advised that an EOI for redundancy will commence today in identified areas of Sydney heavy maintenance and an EOI process will commence in Sydney ACS and Sydney component maintenance and training to minimise compulsory redundancies.

PN2104

So Qantas communicated that it would undertake a redeployment process, but didn’t at that stage communicate that there are any final boundaries around what it would do. They said it was involved in ongoing communication and it gave a commitment to attempt to mitigate and minimise forced redundancies. Nothing in that communication should have led any of the LAMEs to believe that Qantas’s efforts to accommodate redundant employees would not be continuing. The next main communication is at DR2 which is the information pack circulated to the heavy maintenance LAMEs and in that document Qantas advises that where skills and capability allows position swaps may be facilitated if a favourable outcome can be obtained with another person in the business unit.

PN2105

True it is that the document advises that there will be limited redeployment opportunities for those employees who do not have a position that is retained, but that document certainly doesn’t give any figure. It’s really in the nature of communication to ensure people are clear that there was not an endless capacity to redeploy and that the circumstances were serious. Now, does that sort of communication give rise to a rule or an understanding about the position with ACS Sydney opportunities? In our respectful submission no, you couldn’t elevate it that high.

PN2106

There’s attached to that document a preference sheet, employee preference sheet which you’ve seen a few of. They’re attached to Mr Roelandts statement as well. And it’s curious that the sheet doesn’t identify any of these opportunities. First of all any position in Brisbane heavy maintenance, second there’s no reference to any role being available in Cairns, although from the evidence, Commissioner, you will have heard that a role was later identified and offered to Mr Ortega. There’s no reference to any role in Adelaide, although a role was later identified and offered to Mr Burns. Now, to the extent that those opportunities weren’t identified at the very start they give rise to the same unfairness that would flow from further positions now being made available in Sydney ACS.

PN2107

Looking at it sensibly there was never any fixed and unchanging position about any particular role or any particular type of role and that, Commissioner, is no more than consistent with good business practice in the circumstances of attempting to utilise valuable highly skilled long serving employees wherever that is possible, where it’s able to be done. Now, following those initial communications in March, Commissioner, there was further communication about the rules of engagement in the agreement that was reached with the ALAEA on 5 or 7 April 2006 and that is at DR4, Commissioner.

PN2108

That agreement indicated that Qantas would invite expressions of interest in redundancy for all LAMEs engaged in line maintenance across Australia and following that process the company was to review all of the EOIs, those from Sydney heavy maintenance and those from other line maintenance areas and see if an appropriate match between skills and experience was able to be identified. And subject to that skills match the heavy maintenance employee was to be offered the position subject to the line maintenance employee taking a redundancy.

PN2109

Now, as the evidence of Mr Ratcliffe revealed at about that time Qantas determined that it would not undertake any skills matching of Sydney heavy maintenance employees with Brisbane line maintenance employees.
Mr Ratcliffe’s evidence was to the effect that a business decision was made due to the availability of vacancies in Brisbane heavy maintenance not to engage in that process. And I haven’t had the benefit of the transcript and I'll stand corrected if this is not correct, but I gather that his evidence was that a similar decision was made in relation to Melbourne.

PN2110

Now, unlike the assertion there are no jobs in ACS this agreement of 7 April is something which you might properly characterise as being the rules of the process. So Qantas established an early precedent of bending the rules having regard to its own judgment of its operational requirements. And Mr Ratcliffe was quite convinced. You will recall the evidence that he gave about how it was sensible business practice for them to do that because they needed to fill those heavy maintenance positions, both in Brisbane and in Avalon. But the initial precedent was set nonetheless that the rules might be bent by Qantas and that is a matter which is very relevant, we say, when considering Qantas’s claims that it can not bend the rules such as they are at this stage of the process.

PN2111

Now, another point to be made about what occurred at that stage is the point that I made earlier, which was that Qantas proceeded in a matter not entirely contemplated by this document to swap Sydney ACS employees into Brisbane ACS roles and open up some Sydney ACS roles. Again whist that certainly may have been beneficial and a step to accommodate the preferences of redundant employees it was certainly an action taken by Qantas not entirely consistent with how it had held out it would proceed. And no doubt when that process was occurring employees would have assumed the process is changing now or perhaps the union has been able to secure a different arrangement through its ongoing consultations.

PN2112

Now, the first point in the evidence in these proceedings where Qantas appears to have communicated any fixed position about ACS Sydney positions was in the final discussions with the retrenched employees on or about 31 July and 1 August 2006. And I'll take you to one example of that sort of discussion is in the affidavit of Mr Roelandts at LR4, Commissioner.

PN2113

THE COMMISSIONER: Yes.

PN2114

MS DOUST: And you can see in that document that’s a note of the discussion between Mr Roelandts and Mr Lalic. There’s a pre-typed note up the top:

PN2115

As the ACS redeployment process is complete we need to discuss alternative options. There are no LAME opportunities in Sydney.

PN2116

Now, at this stage in the process, Commissioner, a number of employees had been accommodated by offers in ACS Sydney and you heard the evidence about how some offers went out then Qantas waited for responses to those offers, it might then make further offers available and so on. So that was a somewhat staggered process. Concurrent with that in June I think the evidence was Qantas communicated at that stage with employees about various other opportunities. But at this stage when that communication about LAME positions in Sydney was made there were only I think if you look at ALAEA 1 which was I think the waterfall chart that was dated 24 July, there are only about 26 remaining employees who were in that unattached pool, if you like, who hadn’t obtained a suitable alternative position or opted for a voluntary redundancy and you can see in the evidence of the witnesses from the ALAEA that they hadn’t been formally advised about the outcome of ACS applications.

PN2117

And I’d like to if I might just go briefly through some of that material. The first is, for example, the witness statement of Mr Walker which is ALAEA 10.

PN2118

THE COMMISSIONER: Yes.

PN2119

MS DOUST: And you see he says at paragraph 10 in relation to a meeting on
19 June that he was not presented with any letter in the course of the meeting nor was he informed of the outcome of his application for a position with ACS Sydney and then later at paragraph 12 he says he had a further meeting with Les Roelandts and Deborah Lewis and he recalls being told for the first time that there were no LAME positions available in Sydney. And there’s similar evidence in the statement of Mr Re, ALAEA 13. Paragraph 16:

PN2120

I did not receive anything responding specifically to my application for the ACS position until 4 August 2006.

PN2121

Which was when he was notified of the compulsory retrenchment. Mr Field, ALAEA 10, paragraph 17:

PN2122

I did not receive any response following my interview other than hearing rumours from fellow employees as to who was successful. When my name was not included in the rumours I approached Peter Styles in about mid June to ask about the rumours. He informed me I was not successful. I asked if I could be considered for a senior LAME position as I was aware that not all positions within ACS were filled. I told him that I was aware that LAMEs had been offered senior LAME positions. He replied something like no it’s too late, but why don’t you try Emirates, they are employing in July.

PN2123

And of course he later lodged a grievance about that and there was communications and the like. So to the extent that anything was communicated finally to Mr Field we raised yesterday with you the nature of that communication as at 24 July. Another example is Mr Lalic who at paragraph 12 of his statement talks about attending an interview in May for an ACS position. He says that after the interview he began to hear that other LAMEs had been offered positions in ACS Sydney and he approached Murray Harris to explain his qualifications, forwarded a letter to Mr Harris, Mr Harris said that he would forward the letter to Mr Styles and there was no response to that letter.

PN2124

And of course he proceeded to later lodge a grievance and instructed the ALAEA to lodge an appeal about his selection for retrenchment. But the point to be taken out of all of this, Commissioner, is that it was really only in the final days to a small group that it was communicated in any sort of unequivocal sense that the redeployment process had closed and that there were no more LAME positions in Sydney. Prior to that time the evidence indicates that there’s a fluid staggered process in which various offers were arising at different times. So to the extent that Qantas can be said to have laid down a rule about how things proceeded by its communications at that time it was a rule which was immediately challenged by the ALAEA by their letter of 1 August and that was a letter effectively saying you’ve now told us that the process is closed, we put that very much in issue and the ALAEA continued to agitate the position.

PN2125

And of course in these proceedings Qantas produces no evidence about the position of any of the other 12-odd LAMEs who are in that final group of 26 who were told no ACS positions, sorry, no LAME positions left in Sydney. No evidence of them disputing unfairness. They all had their opportunity through the ALAEA to attempt to challenge the decisions made by Qantas.

PN2126

THE COMMISSIONER: The letter of 1 August doesn’t actually say we’ve now been told that you’ve closed off things. It didn’t say that. It just said we’re about to retrench people, now we want you now to sit down and talk about some further alternatives. It’s not quite the tone you just put, is it?

PN2127

MS DOUST: Well, it’s certainly implicit in that that Qantas has communicated that there’s no more positions, it’s come to an end.

PN2128

THE COMMISSIONER: Yes, but there’s no implication from that. I mean, it’s neutral at this point. There’s no suggestion. Reading that it would still be the case that someone might think well, Qantas did have this rule and we all understood it, but we’re now saying it should go further. This is not saying hang on a second, this is the first time we ever heard about a hard and fast rule. It’s not saying that, is it?

PN2129

MS DOUST: Well, with respect it wasn’t characterised or communicated at that sense. As a rule as Mr Ratcliffe claims is the case, he says look, this is a rule of the process. We dispute that it was ever a rule as such. So no, if we didn’t write to him on the 1st saying you’ve now established this rule, with respect that supports our position because it wasn’t communicated in that sense. But to the extent that that was communicated as the position that would obtain that the process had closed at Sydney, there was no more LAME positions and we wouldn’t be allowing anyone else to move into ACS, to the extent that was communicated those components were challenged by the ALAEA.

PN2130

Really what I’ve attempted to do with my submissions is ascertain where Qantas’s case so far as it concerns this rule being communicated to everyone put that at it’s highest, and we say it doesn’t go very high, to the extent that that was communicated at some stage it was communicated to a smaller group and it would have been immediately clear from the steps that the ALAEA was taking that the ALAEA was resisting what was taking place.

PN2131

THE COMMISSIONER: Yes.

PN2132

MS DOUST: Now, to the extent that there’s any unfairness to those employees who earlier on in the process made hard decisions that is an unfairness that arises simply from the way in which Qantas conducted the process and the way it conducted the process was to say look, if you’ve got an offer if you accept it you’re then out of the pool, you’re out of the running and that’s a decision that can have some hard consequences for people in both ways. And you saw how that had a hard consequence for Mr Gans who at that stage was saying that he was interested in a position in Brisbane, communicated with his managers about well, can I still be in the running for the position in Brisbane because that’s my preferred position and that way you can leave a position open up.

PN2133

Qantas was saying no, you cop it or you remain in the pool. And it was never made clear to employees precisely what would be available in that pool if they didn’t cop a position that was offered to them at an early stage. So there was a level of uncertainty involved in the process. They could either take something definite and secure or they could go into a pool where they might be offered Cairns, they might be offered Brisbane, they might be offered, you know, a secondment in tech services or something like that. They didn’t know and that’s effectively the unfairness that Qantas complains about.

PN2134

But there might be something now about which people didn’t know at the earliest stage.

PN2135

THE COMMISSIONER: Yes, sorry, yes.

PN2136

MS DOUST: So to the extent there’s any unfairness it doesn’t arise inherently from the proposal put by the ALAEA, it arises simply from the nature of the process that where there are continuing efforts to accommodate employees new positions may arise which weren’t envisaged at earlier stages in the process.

PN2137

THE COMMISSIONER: Yes.

PN2138

MS DOUST: Thank you. That’s all that I need to address you on in relation to the unfairness argument, Commissioner, unless there’s something that you wish to hear from me about in relation to that. The second limb, as it were, of Qantas’s case is what I might describe as the operational objections to the ALAEA’s proposal. Now, so far as the annual leave proposal is concerned in our submission Qantas have manifestly failed to demonstrate that they have given any real and substantial consideration to the proposal. There can be no question that accrued annual leave and long service leave levels for LAMEs in Sydney ACS are excessive.

PN2139

There is something like 800 LAMEs with an average of 120 days of all forms of leave in accrual and that’s, I think, about 41 in annual leave and about I think 81 in long service leave. Bearing in mind, of course, that clause 15.12 of EBA 4 provides that leave must be taken within 12 months of it accruing. There is an assertion on the part of Qantas that those levels of leave do not pose any occupational health and safety problem. If that were right it still wouldn’t be an answer to the ALAEA’s proposal, but it is an assertion again manifestly unsupported by evidence and we say it’s a cavalier assertion. The only strategy for dealing with excessive leave is that alluded to by Mr Atwell-Harris which is in the hands of the Lighthouse Group which is tasks to consider the structuring of rosters in a way to ensure the working down of leave.

PN2140

With all due respect to him there are some elements of his evidence which we wish to draw to your attention. The first is this. It’s clear in his statement that the accrued leave is so substantial that even by applying these six gentlemen to it it wouldn’t be made and that’s in paragraph 25 and that’s we say a very interesting and candid revelation by Mr Atwell-Harris. That’s at paragraph 25.

PN2141

If Qantas were to continue to employ these six individuals to cover outstanding leave in ACS Sydney given the amount of the outstanding leave this would have little impact on the outstanding leave balances.

PN2142

So there’s certainly an enormous well to be dealt with there. The second thing to be said about Mr Atwell-Harris’s evidence is this, that his lack of command of the detail about this area demonstrates that it hasn’t been given real and substantial consideration by Qantas. Qantas’s objection rests entirely on the assertion that further ACS LAMEs in Sydney would be supernumery in a sense that that’s an entirely meaningless characterisation because taken literally the word supernumery means an additional number or an extra number. Qantas has decided on a number and so anything in excess of that will be supernumery.

PN2143

Well, of course, but the real issue is what are the appropriate numbers when there are such extraordinary amounts of leave accrued? In our submission nothing that’s been put by Qantas in relation to this issue can avoid the logical conclusion that they ultimately will require additional numbers from somewhere to provide relief of some sort to acquit the leave that needs to be acquitted. We say that is an inescapable conclusion from the details about the amount of leave accrued in
Mr Atwell-Harris’s candid admission in his evidence. The other proposal put by the ALAEA was what I put to Mr Atwell-Harris and Mr Ratcliffe as a double shuffle job swap which was the proposal put by the ALAEA to allow volunteers from Sydney ACS to go to fill the positions of volunteers in Brisbane and allowing the vacant Sydney positions to be back filled by the Sydney heavy maintenance LAMEs.

PN2144

Now, there can be no fundamental philosophical objection to that process as I’ve indicated because that was a process that Qantas adopted at an earlier stage. The objection really rests on Mr Atwell-Harris’s assertion at paragraph 22 of his affidavit that the ongoing operational requirements of the business would not be met if this scheme was permitted. And you will recall, Commissioner, from yesterday that I attempted to extract from Mr Atwell-Harris the elements of the particular operational requirements that he referred to and you will recall of course that he referred back to the documents which are annexed to his affidavit as MH1 and MH2.

PN2145

Now, to the extent that any further training would be required by the remaining ALAEA employees to overcome any of those operational objections we rely upon Mr Ratcliffe’s concession early on in his evidence that clause 4(a) of the April agreement with the ALAEA obliged Qantas to offer training to remedy any skills deficits. And, Commissioner, in our submission you should bear in mind the evidence of Mr Roelandts in that regard to the effect that whilst LAMEs were afforded what was in the nature of outplacement assistance and training in resume writing and so on that there hadn’t been any concerted or serious effort to undertake labour skills training of the LAMEs in an attempt to facilitate their movement throughout the different work areas.

PN2146

It’s our respectful submission that it is consistent if not with the letter then at least with the spirit of that agreement that Qantas do so. Now, the evidence of
Mr Atwell-Harris which we particularly rely upon with these first of all that I think a number of employees went from Sydney heavy maintenance across to more senior positions within ACS, that he regarded the Sydney heavy maintenance LAMEs not as falling within the category of “unsuitable” but “less suitable”. He accepted from me the proposition that a LAME is a LAME is a LAME. And I refer you back to the evidence of his statement in the meeting with the ALAEA on 3 August that there hadn’t been any problem in Sydney ACS from the Sydney heavy maintenance employees moving across.

PN2147

There was simply an assessment that the process had gone far enough. Now, had Mr Harris been on top of the detail we might perhaps have been able to explore with him whether there was any rational basis related to these employees as to why the proposal couldn’t occur in some fashion but to modify the fashion anything. We were unable to do that because he admits that the judgments effectively that he made were based entirely upon the assessment process that had taken place much earlier in the piece that had resulted in the redeployment of Sydney heavy maintenance LAMEs across to ACS.

PN2148

It was clear from his evidence that since this proposal had been made by the ALAEA that there had been no assessment or review undertaken as to whether or not some further numbers might be accommodated and that’s something that one might rationally think possible in the circumstances an those circumstances include that some 81 employees or LAMEs were accommodated into ACS and the number that we’re proposing now is six. The evidence also disclosed that crews work in large teams. He wasn’t able to say precisely how much, but I think he accepted ultimately that the crews were of a size of somewhere in the region of 10, 15, 20 perhaps. I really couldn’t commit him to anything particular, but he certainly accepted that there were large sized crews.

PN2149

So those two factors plus the passage of time since the integration of the initial LAMEs across to ACS must be factors that would assist to facilitate along with the commitment to retraining that Mr Ratcliffe accepted, all of those things would facilitate the ALAEA proposal. Now, we don’t quibble in any way that Qantas made its position clear as about 3 August and has maintained that position subsequently. But equally we say that the evidence certainly indicates that this proposal that’s been put by the ALAEA to try and with the final group of people avoid forced redundancy hasn’t been given real and serious consideration by those in Qantas.

PN2150

The matter really comes down to Mr Harris’s judgment and what we would say to you is this. It was clear that Mr Harris hasn’t sat down and really done the hard work in seeing whether this proposal could work. He’s drawn a line in the sand. He was unwilling to accept my suggestion, kind as it was, that perhaps he was unduly wedded to the decision because it was his own. But in the circumstances, Commissioner, it wouldn’t be an unfair inference to draw about his evidence given his lack of handle on the detail of the matter, but his opposition to the proposal is rooted in the fact that a decision had been made and really come hell or high water that was the decision that would be complied with.

PN2151

So we say that Qantas doesn’t establish in these proceedings that there is substantial operational reasons for objecting to the ALAEA proposal. And we say that it’s consistent with the spirit of the provisions in clause 37 which include that introductory statement about the desirability of maintaining job security that Qantas take all reasonable steps, consider all rational proposals, give them real and substantial consideration. Now, those are the matters that I wish to address you on in relation to the question of Qantas’s operational objections about the ALAEA’s proposal.

PN2152

In summary what we say is that when all of the matters that I initially addressed you on are given consideration Qantas hasn’t taken all reasonable steps because reasonable steps include considering rational proposals and continuing to pursue the process while there are employees that could be redeployed. Now, the alternative argument that I put to that which is really in the nature of an alternative because if we’re successful on the first argument and you are inclined to exercise your discretion to grant orders in the nature of those we have sought the alternative argument is about the appeal process.

PN2153

This argument really turns on effectively a question of interpretation and that was canvassed by Mr Ratcliffe in his evidence and the argument arises out of the appeal rights set out in clause (l) of part D of EBA 4.

PN2154

Employees who wish to continue working for Qantas and who are targeted for redundancy may appeal within four working days to the ALAEA and their employment shall continue until the matter has been dealt with. The ALAEA must forward the names of appellants to the company within two working days of receiving the names. Qantas shall complete the appeal process within two weeks.

PN2155

It is you’ll see the appeal letter is I think the final page of the statement of Mr Re which is ALAEA 13 and the annexure is SR9. It’s the final page in that document.

PN2156

THE COMMISSIONER: Yes.

PN2157

MS DOUST: Commissioner, that’s really responded to by the letter of 29 August from Qantas which is annexed as PC7 to the statement of Mr Cousins which is ALAEA 7.

PN2158

In our view your assertion that those employees have received formal notice may now exercise a further appeal right is misconceived. As you are well aware there’s still positions available which the redundant employees could accept. They did not wish to leave Qantas including LAME positions at Avalon, Brisbane heavy maintenance, LAME positions in Sydney.

PN2159

Now, in our respectful submission those matters are no answer to a plain reading of the terms of clause (l). The suggestion by Mr Ratcliffe that this was limited in some way, I think he suggested that it was limited to circumstances where there were I think some employees out of a larger group who were targeted as part of a selection process. Well, there’s a couple of things to be said about that. First that’s indirectly what’s happened here because in effect these employees have been selected out by not being selected for redeployment positions. So they weren’t selected for the ACS positions.

PN2160

In two cases I think there’s offers that were made that were rejected in Cairns and Adelaide, but substantially this is indirectly the situation that Mr Ratcliffe refers to. But look, in any case it’s our submission that you wouldn’t read in to clause (l) the sort of qualification that Mr Ratcliffe suggests. These employees were certainly targeted for redundancy as a result of the closure of heavy maintenance and they were going to be subject to a compulsory process as a result of the letters of 4 August. Again consistent with Qantas’s stated obligations about compliance with the spirit of the law you wouldn’t read down what is fundamentally a beneficial appeal right on the basis that Mr Ratcliffe has suggested.

PN2161

So in our submission Qantas has failed to act in accordance with its obligations under that clause of EBA 4 and in our submission you should so find and depending upon your view as to the earlier issues about alternative redeployment proposals that you may wish to make some orders about continuing the appeal process. Commissioner, you'll see that that appeal process involves the employment of employees continuing until the matter is dealt with. There is a commitment in the process that it be completed within a period of two weeks. That's obviously long gone now, but we draw those matters to your attention.

PN2162

There's some final matters, I think, to be addressed with you. You obviously, if you're satisfied as to the matters we've addressed you on, Commissioner, you obviously have a discretion as to the making of any orders and perhaps as to the manner in which those orders are framed and in our submission there's a number of factors that I've already addressed which militate in favour of exercising that discretion, in particular, Qantas' operational and financial capacity to deal with the proposals that have been put to them.

PN2163

But I should, in all conscience, also direct you in particular to the circumstances of the employees who remain because it is suggested, I think, in the notes at DR6, I think, there's some suggestion in there, I think, and I stand correct if I'm wrong, but to the effect that employees who have done nothing shouldn't be rewarded and I wish to take issue with that and I ask you, Commissioner, to give consideration to what we say are very sympathetic personal circumstances which justify Qantas taking further steps to attempt to accommodate them and which would militate in favour of exercise of discretion.

PN2164

In the case of Mr Lalic, for example, he's spoken about the very real difficulties he's encountered in his relationship with his wife as a result of this process. It's clear from the steps that he took along the way, you see at paragraph 12 and following, that he was quite surprised and concerned that he hadn't been accepted for a position in ACS. He referred to his extensive qualifications. He gave some evidence about the qualifications that he'd attempted to accrue on his own time.

PN2165

He has some 14 years' service with Qantas behind him and his family situation is that he has two young children, one's 11, the other's at kindergarten and his wife works in her father's business and, of course, he's had some serious difficulties in that relationship since he's been seconded to Avalon and when I put these matters to you, Commissioner, what I ask you to accept is this, that in the circumstances that obtained at Qantas from March 9 to date, no employee there, regardless of the decisions that they have taken along the way, has had it particularly easy.

PN2166

Some employees were fortunate to have obtain redeployed positions early on and happily redeployed into ACS. Those employees who were unsuccessful obviously had to deal with some considerable disappointment. Some of them made difficult decisions to move interstate. No doubt you can assume from the EOI process that some of them made decisions to move interstate which they were happy about. Those employees who haven't been accommodated in the process, and you see that apart from two, these employees weren't made offers along the way. Those employees have been through an extensive period now of uncertainty and you are entitled to assume that they wouldn't undertake that sort of process, put themselves and their families through that sort of stress in any way likely.

PN2167

These are all employees with lengthy service and great loyalty to Qantas. Any suggestion that they have somehow not played ball in the process, we'd ask you to reject absolutely out of hand. The position of Mr Burns, whose statement is at ALAEA14, is as follows. He currently has some 13 years' service with Qantas, but one of the matters that I ask you to take into account, Commissioner, is this. He also served Qantas as an aircraft engineer in the period from 1969 to 1986. So he's a man who's devoted 30 years of his life to doing the work that Qantas requires to be done on its aircraft.

PN2168

So any suggestion that he, for some reason, wouldn't be entitled to the most serious of consideration in redeployment terms at this stage, you should reject out of hand. The other matter affecting him and which, no doubt, played a part in the decisions that he made was this. His daughter, who's 26 years old, has lost two children shortly after their birth in the last three years. He says this has had an enormous toll on his daughter, her husband and his wife. His daughter required the support of her mother, understandably, having gone through that. So he says, "It was impossible for me to contemplate moving my home base from Sydney," although at some stage, he says, he was thinking about a position in Canberra that he could commute to to enable him to continue some sort of security of employment.

PN2169

The misfortune continued because late 2004 the situation worsened when his wife suffered some leg injuries in a car accident near Wagga. So this is a man approaching the final years of his employment with considerable family concerns who's made difficult decisions about not going interstate for Qantas. As I said, the suggestion that these employees are undeserving of consideration is actually tragic and it seriously disrespects their commitment to Qantas, their commitment to their profession and their achievements over the years. Mr Field, whose statement is at ALAEA9 - - -

PN2170

THE COMMISSIONER: Sorry, Ms Doust, you didn't take me to all of them. I do appreciate those personal circumstances and I know Qantas has said that or there was some suggestion these people sat down and did nothing, et cetera. I don't think that's going to be a great point that tells against your side. Suffice to say that while opportunities are made available by the airline interstate and some people have taken it, whether or not the circumstances are as severe as perhaps is revealed in some of the circumstances or if it's just, "I just don't want to leave Sydney because this is where, you know, I've always lived," I wouldn't have thought that that would tell against an employee. I think the moving of interstate is quite a big step and there's no suggestion, you know, that if they're not prepared to do that it's somehow unreasonable.

PN2171

MS DOUST: Yes. Well, I'm certainly reassured to hear that from you, Commissioner. The union obviously appears in these proceedings to represent its members to the absolute best of its abilities and I wouldn't want it to be said that we didn't draw these matters fully to your attention. Having said that I would wish to say this, though, that it is a limb of our argument as well that reasonable steps involves reasonable consideration of the sympathetic personal circumstances of particular employees and we say in each of these cases there are sympathetic personal circumstances which should have been given some consideration by Qantas in the process.

PN2172

Thus far the burden on them, of having regard to compassionate circumstances, has been relatively light, but we don't say that they've been entirely hard hearted. But it's clear from the evidence of Mr Atwell-Harris that the process for determining who would have access to the positions in ACS was one that involved assessment of skills and so on. So that was really a process of cherry picking the best employees from Sydney Heavy Maintenance to the extent that it bears on your discretion, having to make some allowance now for the sympathetic circumstances of the remaining employees is not, we say, an undue burden, particularly in circumstances where other employees have indicated a desire to volunteer to move or accept redundancy. That's what we say. We say that these proposals can be accommodated with a minimum of pain on the part of Qantas.

PN2173

I should really just check with my instructors as to whether there's anything further that I've neglected to put. Other than that, those are my submissions. No, thank you, Commissioner, unless there is anything.

PN2174

THE COMMISSIONER: Yes, just a couple of things. In your proposed order, on the second last page, 17(a)(iii) - well, (a) says:

PN2175

Qantas ought consult about this issue of leave -

PN2176

that's outstanding and building up.

PN2177

MS DOUST: Yes.

PN2178

THE COMMISSIONER: And -

PN2179

consult about the proposal to use these six people to provide the relief -

PN2180

and then (iii):

PN2181

thereafter take such steps to assist.

PN2182

MS DOUST: Yes.

PN2183

THE COMMISSIONER: Now, (iii) is similar to (ii), is it? I mean, I suppose they can consult about using the six and then use the six?

PN2184

MS DOUST: Yes, and also such additional steps as are reasonable or required. I think really all that in our case comprehends is any necessary retraining to the extent that there is any - and we attempted to explore that, the particular barriers with Mr Harris, but were unable to ultimately.

PN2185

THE COMMISSIONER: Yes. The other thing is, in respect of your orders, what doesn't seem to be there is that in the proposal of August there was also this, using the six to acquit training that might be, you know, programmed for other people and also to cover roster shortfalls. The order doesn't go to that?

PN2186

MS DOUST: No, it doesn't and if I just might clarify my instructions because I don't consider that it's really been pressed by us in this case. I think that the highest we could put it, Commissioner, would be an obligation to undertake further consultations perhaps followed up in 17(a).

PN2187

THE COMMISSIONER: Yes.

PN2188

MS DOUST: I think the highest I could put the evidence on that point was that of Mr Harris about the shortage of A330 licences but again I'm not sure that we extracted anything particularly definite about any step that Qantas was about to take.

PN2189

THE COMMISSIONER: You've said if Qantas had a rule, you're saying, you're not aware of it, but if Qantas had a system, it had it in that communication to employees very soon after, but then you say they then had the April agreement but changed it, and then they even allowed the double shuffle in relation to Brisbane ACS.

PN2190

MS DOUST: Yes.

PN2191

THE COMMISSIONER: And you say, well, they've changed the so called rules that we didn't know about then. Well, what's wrong with changing them now? But didn't most of those changes occur before people were ultimately retrenched or forced to take decisions or not? I'm not quite sure of the time frame.

PN2192

MS DOUST: Well, this is part of the difficulty with it, Commissioner. The first thing that we'd say is you really can't take from the evidence that there was any particular rule. First thing is, saying that there are no positions in ACS is not a rule. But second of all, it was never something that was communicated to the workforce at large unequivocally at that sort of early stage. The process was fluid effectively and what we suggest is no more than a continuation of that fluidity and continuation of a process that we say is consistent with the agreement that was reached with the ALAEA and how that was put into effect.

PN2193

THE COMMISSIONER: Yes. Finally - - -

PN2194

MS DOUST: Can I just say something further? Really what we say about this, the fairness argument, about this rule, is not - that's the cover under which these are the undeserving do-nothings argument hides, because really this argument is about, we can't reward the people who didn't take up something in desperation along the way.

PN2195

THE COMMISSIONER: Well, that - - -

PN2196

MS DOUST: So that's really the argument that's been put to you and when you do examine and see, well, hang on, where were the rules expressed, where were they communicated clearly to everyone that these are the rules in the process? You know, that argument falls apart and you see it for what it is and it's extraordinary really for an employee whose evidence is chock full of assertions of managerial prerogative and whose conduct involved assertions of their prerogative as they've seen fit, to come down and really plead the rules in some form of relief.

PN2197

THE COMMISSIONER: And then finally, there's this issue. There's the - it's said that to grant further options, for example, leave relief work in Sydney, would be unfair to those who took unpalatable options such as taking VR or there might be some - I think there are some who went off and worked as AMEs in Sydney. There's that argument, but then there's another - the other question is this. What happens in the context that Qantas presumably will continue to review its operations, and I know ACS is under review, what happens when another redundancy situation occurs?

PN2198

What's the danger that employees see what occurred this time, particularly if orders are given, because Qantas hasn't made the concession, turn round and say, well, I'll put in for my first choice, it might be VR, that's easy, but it might be ACS in Melbourne or, you know, depending where, but what I won't do is I won't put my second choice because hopefully at the end of the line people will get so sick of it that I'm going to end up being favoured by - well, not favoured, but with something that's - I've got nothing to lose, because ultimately I'll be taken of because the union has succeeded, everyone will have a job and so I'll sit around.

PN2199

I ask that question because often these problems of redundancies, both unions and employers are assisted by people taking perhaps their second choice. If everybody just took their first choice, other than people who want to retire, there'd be no movement and employers would end up saying, well, we're going to have to compulsorily terminate people, last on, first off. So I'm just saying, in the broad, what does your organisation think about that?

PN2200

MS DOUST: Well, it's a very broad question and there are a lot of assumptions built into it and one of the assumptions would be that any further closures or redundancies would be of this nature, that Qantas would have the same options to re-deploy people as it had this time, that there might be similar numbers of people involved, that there might be similar outcomes of a review process. So I don't think that you can necessarily extrapolate from this that there'll be a precisely similar process in the future.

PN2201

To the extent you have taken the view that employees would approach this process and regard an outcome for six employees where a whole number took voluntary redundancy, a number took lower level jobs, a number, you know, were moved interstate as a victory by the union, well, I think, you know, reasonable minds might well differ on that one. I don't think there can be any question in these circumstances that all of the employees have gone through, and their families, have gone through some serious levels of pain, anxiety and uncertainty as a result of the process. So I don't, with respect, adopt your view that in future employees confronted with redundancy or closure would sort of treat their lives as the baccarat table and gamble on the fact that, well, there'll be this pot of gold at the end of the rainbow.

PN2202

Really, that's effectively what I was trying to cavil with before. Everyone's gone through a very, very difficult process and what we say is you can tell from the fact that there's only six guys remaining here that this decision has been one which has been extraordinarily painful for them and has involved a great deal of uncertainty. It's not, with respect, something you should really hold out to future generations as being a terribly attractive option.

PN2203

THE COMMISSIONER: Yes, thank you, Ms Doust. Yes, Ms McKenzie?

PN2204

MS MCKENZIE: Yes, I was wondering, Commissioner, whether it was appropriate just to have a five minute break while I just double check my papers, if you were going to have a break.

PN2205

THE COMMISSIONER: Yes, if we had a break, if we could finish not necessarily at 1, but at some time after 1, because then we could - - -

PN2206

MS MCKENZIE: Certainly because if not at 1, I'd certainly be able to finish before lunch but I can't promise that but it won't be very long after, if it's not before lunch, it will be fairly soon thereafter, comfortably today.

PN2207

THE COMMISSIONER: Yes. Why don't we adjourn for 10 minutes and if we have to adjourn for lunch, good and well, but if not, if it means you go on to 1.30 or 1.15, as long as everyone can take the 10 minutes as the appropriate comfort break, it might assist all of us, okay.

PN2208

MS MCKENZIE: Thank you, Commissioner.

<SHORT ADJOURNMENT [11.55AM]
<RESUMED [12.10PM]

PN2209

THE COMMISSIONER: Yes, thank you, Ms McKenzie.

PN2210

MS MCKENZIE: Yes, thank you, Commissioner. Commissioner, the ALAEAs case in these proceedings is, we submit, based on two fundamental propositions, both of which I hope to demonstrate are false. The first one is really that because there are still some employees who are to be compulsorily retrenched, Qantas has not complied with its EBA obligations. The second proposition is that because Qantas hasn't accepted the specific proposals or requests which the ALAEA has put to it in relation to particular measures for reducing the number of employees to be retrenched, Qantas has not complied with its EBA obligations.

PN2211

Those two propositions really flavour and underpin the whole of the ALAEA case and in our submission it will be clear to the Commission that they both involve a fundamental misconstruction and therefore misapplication of the relevant provisions of the EBA. The evidence in the proceedings in our submission shows, and this is evidence which is by and large not contradicted or challenged in any way, is that there was extensive consultation between Qantas and the ALAEA commencing from March 9 and continuing throughout the process.

PN2212

Secondly, there was a comprehensive and detailed process developed and implemented by Qantas whereby it managed the consequences to employees that arose from the announced closure of the Sydney Heavy Maintenance Base. There was also in the course of the consultation a number of modifications or changes to that process or to particular measures taken by Qantas which were the direct result or in direct response to proposals put by the ALAEA or matters which were the subject of negotiation between the parties during the consultation process that I referred to, and the agreement, which is DR4, is but one example of a measure or an arrangement which was negotiated and agreed to between the parties which had a direct application to the way in which the redundancies were to be managed.

PN2213

And the result of the process, and I think this is very compelling evidence, which is not in any way seriously challenged, is that as a result of the process the overwhelming majority of the 480 employees whose positions were declared redundant - - -

PN2214

THE COMMISSIONER: 460, isn't it?

PN2215

MS MCKENZIE: 480 employees in total in Heavy Maintenance, 260 of those were - - -

PN2216

THE COMMISSIONER: Yes, that's right, yes.

PN2217

MS MCKENZIE: 260 were LAMEs. The overwhelming majority of those people have one way or another avoided being in the position of being compulsorily retrenched. Pausing there, I think it's important just to note at the outset that we are not dealing simply with six employees as being the only employees who are to be compulsorily retrenched within the LAME cohort. Exhibit QF1, which was a chart setting out the breakdown of the remaining LAME CRs as at 19 September shows that as at 19 September there were 13 potential LAMEs who would be subject to compulsory redundancy and 13 LAMEs have been given notice of retrenchment.

PN2218

Only six of those LAMEs are the subject of these proceedings and only six of the LAMEs therefore appear to be represented by the ALAEA, but there are 13 LAMEs, as is clear from QF1, who are subject to compulsory retrenchment, not six.

PN2219

THE COMMISSIONER: Well, that's seven gone or - - -

PN2220

MS MCKENZIE: No, seven - there are 13 LAMEs who have received notices of retrenchment.

PN2221

THE COMMISSIONER: I see.

PN2222

MS MCKENZIE: On 4 August. In my submissions, the way I propose to approach the relevant issues is to deal with them in this way. I want to first deal with the proposed orders sought by the ALAEA and then make some submissions in relation to the particular provisions of the EBA which the ALAEA relies on and then come to the evidence, particularly in relation to the process which Qantas adopted and then make some submissions as to what we will invite the Commission to find are the relevant tests or principles which should be applied in determining the matter and I'll touch on it in that section of the submissions on the jurisdictional constraints which we say are on the Commission by virtue of the application of section 170LW, and then I want to deal briefly with the circumstances of the individuals to the extent that it is relevant to the merits of the matters that the Commission will have regard to in the exercise of its discretion.

PN2223

Ms Doust said at the outset, and I think there's no controversy about this, that the application is made pursuant to the dispute settlement procedure which I think is clause 4 of the EBA and as underpinned by section 170LW of the Act, and section 170LW of the pre reform Act continues clearly to apply and that enables the Commission to settle disputes arising over the application of an EBA and there's no doubt that in settling the dispute, the Commission is at large but what is equally clear on the basis of the number of authorities both from the Commission and the High Court is that the powers of the Commission to settle disputes is limited to disputes which arise over the application of the agreement.

PN2224

It follows from that, in our submission, that it would not be within the Commission's jurisdiction pursuant to section 170LW for it to make orders or otherwise impose obligations on the party to the agreement which are new obligations or which are obligations which are directly inconsistent with or incompatible with other provisions of the agreement. So the Commission cannot be at large in the orders which it makes. It can't impose on Qantas, for example, an obligation that Qantas provide employment for A, B or C employees if to do so would be directly contrary to another obligation of the agreement, or if to do so would have the effect of imposing a completely new obligation on Qantas such that it would constitute, in effect, a variation to the agreement.

PN2225

So the Commission can't change the agreement and substitute what it thinks perhaps should be the appropriate provisions to regulate the conduct of the parties in the event of a redundancy. The Commission has to consider the agreement as it stands and settle the disputes that arise over the application of the agreement, and we don't take issue in any way with the proposition that there is a legitimate and genuine dispute over the application of clause 37. But when one comes to consider the orders which the ALAEA are seeking it's important to be clear that at the heart of those orders is in effect a request for a declaration or a determination of the content of the existing provisions of the EBA and not some new or varied provision.

PN2226

The orders which the ALAEA seek in settlement of a dispute are set out in the draft amended notice as varied in the course of the proceedings through Ms Doust's submissions and just for clarification, we take it that clause 14 is pressed, although Ms Doust touched only briefly on the issue of the construction of clause (l) in relation to appeal rights, and I will deal with that. Clause 15, the order set out in clause 15 is not pressed. Clause 16, and I think Ms Doust confirmed that the reference to clause 37.2 should also be read to include 37.3 and 37.4. Clause 16 is not being pressed, as we understand it from what Ms Doust said just before the conclusions of her submission or I think she said she could only put it, at the highest, she accepts that there is not a lot of evidence that goes in support of that order.

PN2227

The order sought in clause 17 seems to touch more on the substance of the remedy being sought and together with (a) and (b) of that order, and again we understand that the reference to clause 37.2 and 37.3 should also now include 37.4 and I think they were the only changes. So the substance of the case really turns on the order sought in clause 17 and, to a lesser extent, on clause 14. Can I deal firstly with clause 14. What the union seeks is a determination or finding that in the circumstances above and those circumstances being, generally speaking, the current facts of the closure of the Heavy Maintenance Base, clause (l) Appeal Rights of part D obliges Qantas to hear and determine the appeals lodged on behalf of the retrenched employees.

PN2228

The Commission will be aware that there was very little evidence brought by the ALAEA in relation to the nature of the appeals, the grounds, the substance of the appeals brought on behalf of retrenched employees. There's some evidence from Mr Ratcliffe, however, about what Qantas did in relation to the appeals and I think there's some correspondence which was tendered in the earlier proceedings which has a bearing on this issue and it's ALAEA4 and ALAEA5. ALAEA4 is a letter from Mr Purvinas to Mr Vincent of Qantas advising Mr Vincent that the union has received appeals from a number of people for retrenchment and sets out the names of the individuals and it asks that we expect each appeal to be heard on an individual basis.

PN2229

That letter is dated 11 August and the Commission will know from the evidence of each of the individuals insofar as those six are included in that list that they each received notices of retrenchment on 4 August. So the notification in relation to the appeals was communicate to Qantas after the employees had actually received their notice of retrenchment and ALAEA5 is a letter from Qantas to Mr Purvinas dated 29 August which contains Qantas' response to that earlier letter.

PN2230

The order sought in paragraph 14 effectively seeks or requires the Commission to interpret the nature of the obligations imposed on Qantas through part (l) of clause 49. In our submission it is clear from a proper reading of the EBA that part (l) does not apply in the present circumstances and to the appeals as notified to Qantas on 11 August. Part (l) which is found in part D of the EBA which is in turn part of clause 49 says that:

PN2231

Employees who wish to continue working for Qantas and who are targeted for redundancy may appeal within four working days to the union and their employment shall continue until the matter has been dealt with.

PN2232

The EBA contains a definition or definitions in clause 37 which are relevant to a proper construction of that provision. Clause 37.7 contains a definition of redundancy as being a declaration by the employer, but an employer and employees - and I think there must be some words missing - "are surplus to labour requirements because the quantity of work has diminished." And then Retrenchment is defined to be, "Termination of employment of an employee by an employer for reason of redundancy." So redundancy is the declaration that someone's position is surplus. Retrenchment is the act of termination of the employee.

PN2233

It is clear in our submission that the appeal rights arise at the point at which an employee is targeted for redundancy, not at the time at which or after which they are retrenched. In our submission on 9 March all 260 LAMEs were targeted for redundancy. They were told that their positions had been abolished and in fact each employee received an individual letter advising them of the redundancy of their position and it was that declaration of redundancy which triggered Qantas' obligations in relation to redeployment and the consultation and discussion, obligations which I'll come to in a moment.

PN2234

It is, in our submission, clearly a misunderstanding of part (l) to suggest that it creates an appeal right in respect of a particular employee after that employee has been retrenched. In other words, after they had received the notice of termination of employment. It's also, I think the Commission may recall, or was Mr Ratcliffe's evidence, that the appeal provisions did not apply to a situation where all of the positions in a particular category or section of the workforce were made redundant because of something such as the closure of the Heavy Maintenance Base and his evidence was that this was the first time in his experience in Qantas that that situation has arisen, where a complete workforce, or section of it, has been made redundant.

PN2235

The redundancy provisions, in particular the appeal rights, generally applied or had relevance to a circumstance where a number of people from within a board or pool were being made redundant. In other words, where there was a broader class and there was a decision to reduce that, a number of class, thereby having to engage in some selection process which had the result of some people being targeted for redundancy and others not - and his evidence in the transcript
about - I don't have day two, I apologise. So forgive me if the record records otherwise than my recollection, but it was my recollection that Mr Ratcliffe spoke about the origins of that clause from his recollection and said that, in his experience, it really was intended to and designed to apply to a situation where there was to be a selecting down from a pool.

PN2236

The EBA is, perhaps a little unhelpfully, silent as to what the appeal process itself is. (l) only gives an appeal right and it says that the ALAEA is to forward the names and Qantas shall complete the appeal process within two weeks and there is no constraint or restriction posed by the EBA as to the nature of that. Although our primary submission is that it is clear that the provision does not apply in the circumstances in which it's sought to be invoked, we also submit that, to the extent that it's relevant to the Commission's discretion that the grievance appeal process which Qantas did undertake in relation to a number of employees, including each of these six employees, fully satisfied any appeal or review of the decision where the two make someone redundant or to in fact retrench them. That would otherwise have been accommodated by appeal rights, and Mr Ratcliffe's affidavit deals with the appeal process.

PN2237

He says the source of it is Qantas policy. Any employee who's aggrieved by a decision is entitled to lodge a grievance. He was the chairman of the grievance process and each of the employees who lodged grievances had their grievances considered. The approach which was taken by the committee, and this is from paragraph 25 and 26 of QF4, through to 27, the process was to consider whether generally there had been any procedural unfairness error in the process and whether the employees had generally been given a fair go in terms of the process, but it wasn't the grievance appeals role to undertake any substantive review of the selection decisions that had been made and arising out of that process, there were three employees who, when the grievance committee had regard to the particular personal circumstances, the committee found that those circumstances hadn't been given sufficient weight and three of those people should be offered positions.

PN2238

So we say to the extent that there is any concern in relation to the application of the appeal rights, it has been met at least in substance and, to coin a phrase of Ms Doust, the spirit of the agreement has clearly been honoured in the way in which the grievance process worked. Turning now to paragraph - perhaps I'll touch briefly on paragraph 16 in relation to the obligation to, as it's put in the proposed orders, to consult on training courses and 37.2, 3 and 4 are relied upon, although 37.3 seems to be the only subclause relevant specifically to the issue of training. 37.3 provides that:

PN2239

The company and the association agree that where practicable retraining opportunities will be provided to employees declared redundant.

PN2240

The agreement says retraining, not training opportunities, and Mr Ratcliffe explained very clearly in his evidence yesterday the difference between retraining and training and he says retraining, in his experience and given his position as Group General Manager of People, retraining is appropriate where somebody is made redundant and as part of redeployment they succeed in winning another position, a substantively different position and in circumstances where they have obtained redeployment, if retraining is necessary to train the person to be fit to carry out that new position as opposed to the position they previously held, then the EBA obliged Qantas, where practicable, to provide such retraining and I think, too, to demonstrate the point, clearly he gave the example of somebody who may have succeeded in winning a flight attendant job. They would be retrained to be, not a LAME, but a flight attendant, and I think Ms Doust may have asked him about whether that would apply if someone was to be a pilot and I think his answer was, in theory, yes, but it would - it's hard to see how that would ever be practicable for obvious reasons.

PN2241

But importantly, 37.3 in our submission does not impose an obligation on Qantas to generally offer additional training to a LAME, additional LAME training to a LAME so that they can pursue a promotional opportunity or some other role which perhaps requires additional licences or something of that nature. It is not a provision which can be relied on to say that Qantas is obliged to further train or provide additional training to employees so that LAMEs can have broader LAME opportunities open to them. It is a quite limited and very specific obligation which Mr Ratcliffe explained and there was no other evidence brought by the ALAEA about this at all and Mr Ratcliffe's evidence as to, if not the interpretation of the agreement, but certainly the practice that has been adopted ever since the agreement's been replaced in relation to the application of that provision should be taken into account and given considerable weight by the Commission.

PN2242

In any event we note that there was no evidence brought by the ALAEA that any further or additional training would assist any of the six employees to obtain redeployment and it is the fact that there are no LAME vacancies available in Heavy Maintenance Sydney. There are no LAME vacancies available in ACS Sydney and the six employees only wish to be placed in a position in ACS Sydney and there's no evidence that further training or additional training will have any bearing whatsoever on - or have had any bearing in the past in relation to their opportunities there.

PN2243

Finally, the other point we make is that no attempt was made to address in any way the restrictions that would be imposed on the obligation by the insertion of the words "where practicable". It can clearly only be where practicable in the eyes of Qantas and having regard to all of the circumstances in which the situation arises and we'll have something to say shortly about the overall circumstances which the Commission should keep at the front of its mind in relation to this matter generally.

PN2244

Paragraph 17 which deals with the question of the leave, we assume for the purposes of this case that the deadline of no later than 22 December would just not be applicable and, although Ms Doust's not addressed this, presumably the ALAEA would seek to have some other future date substituted for that date, but the Commission would otherwise be at large in relation to the limitations put there.

PN2245

The obligation which is sought to be imposed on Qantas is firstly that it consult about the amount of annual leave accrued. Secondly that it consult with the ALA about the ALAEAs proposal to utilise that and then somewhat confidently and the Commission has already picked this up, thereafter, take steps as are reasonable to arrange or assist in obtaining suitable alternate employment for the retrenched employees, and the framing of this order is another clear demonstration of how the underlying propositions, which I referred to at the outset in my submission, have coloured the whole approach the union takes to this case.

PN2246

It's not that they actually want Qantas to consult with them. What they want is for Qantas to agree with them. There has been consultation about he amount of annual leave. There has been consultation about the ALAs specific proposal in relation to annual leave. What there hasn't been is agreement by Qantas to the proposal and subsequent implementation, and all the union really wants is for there to be agreement and for Qantas to be compelled to accept and implement the proposal.

PN2247

In relation to this particular proposal the evidence, in our submission, establishes that it was not raised by the union as a proposal to mitigate, minimise or obviate in any way retrenchments until 1 August, some five months after the redundancies had been announced and after the ALAEA had been advised by Qantas that the remaining employees were to be retrenched and would receive notices of their retrenchment on 4 August and the evidence I rely on there comes from the attachments to Mr Ratcliffe's affidavit which are DR5 and DR6 and just to contest those attachments, in the substance of his affidavit Mr Ratcliffe at paragraph 41 and 42 responds to Mr Re's affidavit and Mr Re gives some evidence at paragraph 29 about a meeting that he attended on 26 July and he referred to the fact that there had been some particular proposals put forward by the ALAEA about additional opportunities in ACS, that there should be more people from Brisbane allowed to go and backfill by Sydney ACS and there's a brief paragraph dealing with that meeting, and then Mr Re also says at paragraph 33, he talks about the meeting on 3 August.

PN2248

Mr Ratcliffe responds to that, but he also attaches Ms Howison's handwritten notes of the entire substance of the meetings on 26 July, which is DR5, and the 3 August meeting which is DR6, and if I can just highlight the particular matters we draw the Commission's attention to. Firstly, on 26 July, on page 1, in the middle of the page there's a comment coming from DR which is Dennis Ratcliffe, and he's talked through Qantas Waterfall Chart, when offered ACS roles:

PN2249

at the end of the process, one week to accept or reject offers -

PN2250

4 August:

PN2251

give notice to those people who do not have a position.

PN2252

So on 26 July the ALAEA is clearly told by Qantas that those people who did not have positions will be given notice on 4 August and there's a discussion about it at the bottom of the page, reduced to 13, and then Mr Ratcliffe, on page 2, says, and this is about point 3:

PN2253

Spoken to ACS. They're of the view that they have exhausted capacity. They themselves will have to find a position -

PN2254

in those numbers.

PN2255

It would be irresponsible to put more people into ACS.

PN2256

And then there's some clearly more detailed discussion about particular opportunities and particular individuals and there is a lot of discussion which reflects what Mr Re was talking about, the idea of letting more people go in Brisbane and backfilling with Sydney and there's a number of pages devoted to comments around that proposal, and again on page 7 of the notes, Mr Ratcliffe says:

PN2257

Events have moved. A serious challenge to ACS.

PN2258

And he's clearly talking about the possibility of a further restructural review.

PN2259

CH, which is Mr Chris Hall:

PN2260

We know that we'll deal with it again if it happens in three to six months. There may be more people then.

PN2261

And it is clear that Qantas is saying, the ACS business just cannot absorb more people and it will be irresponsible of us to put more people in. There is a further discussion then about people who want to go from ACS Brisbane, at page 8, PS, which is Mr Styles, says:

PN2262

Reiterate, Sydney International, Sydney Domestic Base have been through the lists. There is not an exact match. It's not just licences but experience.

PN2263

So there's a direct response.

PN2264

Then again on page 9 in the middle of the page, and this is attributed to Mr Oldmeadow:

PN2265

People give notice next Friday, 4 August.

PN2266

So again, confirmation that notices will be given and further down, still discussion about the ACS swaps and on page 10 towards the bottom, Mr Oldmeadow:

PN2267

Management has made a call, not prepared to make any more shuffles. We've said that's it.

PN2268

So that can't be questioned about the certainty there. There is a reference on page 12 at the bottom to Mr Ortega and Mr Walker, a particular discussion for reference made to their circumstances, and then at the bottom of page 13, Mr Ratcliffe says:

PN2269

We've talked about keeping the process over. Wouldn't pull stumps. We could have declared three months ago. We said we would exhaust this process. We said we would not go to people until it's ended. Today we are at the end. You've raised issues and we'll look at them.

PN2270

But again, very clearly, the process has come to an end and again on 14:

PN2271

Notice, 4 August next week.

PN2272

And then a question is asked:

PN2273

Will the letter have termination date?

PN2274

This is on page 14. Mr Oldmeadow, "Yes." So it cannot have been in any doubt that on 26 July Qantas had made it very clear that the process had come to an end. The matters raised by the ALAEA were clearly discussed at some length, but were not going to be accepted and the remaining people were to be given compulsory retrenchment on 4 August and they would be given a termination date in writing.

PN2275

Now, it's in the context of that meeting that the ALAEA then writes to Qantas and I think this letter is in evidence in a number of cases, but perhaps most conveniently it's ALAEA2, they write to Qantas on 1 August, so not immediately after the 26th, but a couple of days after, three days before the notices are to be given and says:

PN2276

There are specific avenues which could obviate the need for retrenchment.

PN2277

They identify some of these avenues and this is the first time that this absorption or using staff to acquit accrued annual leave is put as a particular proposal which the union requires Qantas to respond to, and there's a number of other proposals in this letter including again direct transfers into ACS and backfilling, allowing more people to go from ACS, all of which were canvassed very thoroughly at the meeting of the 26th.

PN2278

The ALAEA asks for an urgent meeting to take place to discuss that letter before 4 August and Qantas agrees to that and the meeting takes place on 3 August and the detailed minutes of that meeting are at DR6 to Mr Ratcliffe's statement, and at the beginning of that meeting, DL, which is Ms Deborah Lewis, goes through a pack and says:

PN2279

Meet at 7 am to give out the letters.

PN2280

And SP, which is Mr Purvinas:

PN2281

Can we meet with that group after that date?
After 7 am, yes.

PN2282

It appears to be a reference to the meeting with the employees to hand out the letters the next day. The union asks can they meet with the group after they've got the letters, "Yes," and there's some brief discussion about the process about how those letters are going to be given.

PN2283

At the bottom of page - I'm afraid these pages aren't numbered - IO, Mr Oldmeadow:

PN2284

Letters tomorrow. Some will choose to go. Their notice period can go in their ETP.

PN2285

Then on the third page, because there's further discussion again, at about point 7, Mr Ratcliffe:

PN2286

There could be more redundancies in ACS. We need to be up front.

PN2287

Then there's some further discussion about if a LAME chooses to go to an AME role, this is on page 4, would they be given an opportunity to a future LAME role, and Murray Harris says:

PN2288

Don't have an issue with that.

PN2289

Then there's obviously still further discussion in relation to any more redundancies and about three pages from that last reference Mr Harris says, and this is in response to a comment from Mr Purvinas:

PN2290

We've got people in Brisbane who want to go and people in Base who want to go to Brisbane.

PN2291

Mr Harris says:

PN2292

It's not the move but the level Sydney can take. We've absorbed enough people.

PN2293

Mr Re:

PN2294

Have you had any issues so far?
No. That's why I think it's appropriate to stop now.

PN2295

I think Ms Doust might have taken you to this particular bit and I think she also asked Mr Harris about that.

PN2296

So Mr Harris clearly:

PN2297

We've absorbed enough people.

PN2298

And then, it's only then on the next page that the issue of annual leave is raised. Mr Purvinas, leave, thinks there's 150 years. And Mr Harris:

PN2299

We don't meet the target. It doesn't matter how you look at it. The rosters are attractive as leisure time is significant. Don't take leave.

PN2300

It's suggested that what Mr Harris is saying is that people don't take their leave. There's a roster project. Then he says:

PN2301

Can't add more head count as we're over that now to burn leave. The projects will deal with our duty of care.

PN2302

Mr Purvinas:

PN2303

I agree. A lot of people have had leave rejected.

PN2304

Murray Harris:

PN2305

We'll work together in the future. Stand together. When we direct people on leave you'll support us.

PN2306

Clearly a reference to the fact that there has been an issue of people not wanting to take leave.

PN2307

Mr Harris says further down the roster:

PN2308

We'll deal with it. It adds Base level and adds to our cost.

PN2309

Mr Purvinas:

PN2310

I think it's cost neutral. Consider carefully before tomorrow.

PN2311

And Mr Clark of the KCs:

PN2312

Murray Harris already has.

PN2313

I think that's a reference - or he has considered it - no, I'm sorry. I think it's already has - the head count to acquit the leave, by adding more it adds moreover to the head count. And Mr Harris:

PN2314

On top of all of that, it overlays the business. Change, we're making sure we're sustainable.

PN2315

Then they move on to further discussions about the ACS Brisbane/Sydney issue, and then, I think about four more pages in, in response to a question from
Mr Purvinas about what it is that the particular individuals who were being retrenched don't possess.

PN2316

Mr Harris says:

PN2317

Stay away from the individuals. It's a business decision, not a personal decision. It's about what the business can bear. The business cannot absorb any more. It's a significant burden.

PN2318

And Mr Ratcliffe comes in and says:

PN2319

I'm also flagging to you that there may be some surplus.

PN2320

Mr Purvinas:

PN2321

Red herring.

PN2322

So Qantas is saying to the ALAEA, the business cannot take any more, you can't have head count in relation to - just to acquit annual leave, and in any event, we're flagging to you, there's an ongoing review and there may be more redundancies in the future.

PN2323

Then two pages on from that on the third page over, there's a question from Mr Purvinas:

PN2324

Can we postpone these retrenchments?

PN2325

JV, which is a reference to Mr Vincent:

PN2326

No, we have postponed already. People don't have work to do. The facility is closed.

PN2327

And Mr Purvinas said at that point:

PN2328

We advise we're now in dispute.

PN2329

And then there was a little bit more about - and then the meeting finished. So very clearly there was a discussion between Qantas and the ALAEA. There was consultation about the particular proposals and Qantas made it very clear that it was not in its judgment able to take any more into ACS. The proposal in relation to annual leave was not a proposal which was in the operational interests of the business and it was not able to agree to that.

PN2330

So in the context of that evidence, in our submission there is no basis upon which the Commission could form the view that there would be any utility or constructive outcome in making the order sought in 17. There has been consultation in relation to the amount of annual leave. There has been consultation in relation to the proposal and it will be Qantas' view that it would not be reasonable to arrange or assist any further suitable alternative employment for those retrenched employees. Although it's not expressly said so in Roman numeral (iii), that the purpose of that employment would be to acquit the annual leave, it seems to follow from (i) and (ii) that that would be the purpose of the employment and the evidence from Qantas, very clearly addresses why that would not be reasonable on any view of it.

PN2331

So for those reasons we say there is no basis upon which the Commission could find that there's any basis for making that order. The second leg of that order concerns imposing an obligation on Qantas to, in effect, allow people to go who want to go and putting the six remaining employees into those positions, and this order seeks to impose a very specific obligation on Qantas to employ people and to retrench people and pay them a redundancy package and these would be people whom Qantas has already formed a view. It does need to retain the business. They don't wish them to go. They're not redundant in Qantas' assessment, but what the ALAEA seeks in effect is for the Commission to order Qantas to allow people to do whatever they wish and if they wish to go, then Qantas of course has to pay them the substantial redundancy package.

PN2332

In our submission the Commission would not entertain imposing such an obligation on an employer other than in very unusual and extreme circumstances and those circumstances would only be where the Commission had formed the view that the employer had acted in some way in a completely unreasonable and capricious way, such that the exercise of its managerial prerogative was being abused or exercised in a completely inappropriate way, and notwithstanding the ridicule with which unions often refer to it, the right of an employer to manage its business in the way it thinks fit is a right which the Commission has, over many years, recognised and given weight to and the very clear line of authority in relation to the interference with managerial prerogative which Commissions have adopted, not just in the compulsory arbitrations context, but also in the private arbitration context, has been that the Commission will not interfere lightly with the exercise by an employer of its managerial prerogative, but it will only do so where it is satisfied on the evidence and on the merits of the case that the employer is exercising that prerogative in a perverse or unreasonable way or where the exercise of the prerogative imposes an unreasonable or harsh or unfair result on the employees and those are the circumstances in which the Commission would interfere with a judgment by an employer as to what was in the best interests of its business, and in our submission, the ALAEA has failed to make out that evidentiary case.

PN2333

And to expand upon that and I hope demonstrate that, can I turn in general now to description of the process and put this proposition to the Commission first. That when the Commission has regard to whether or not the company has met its obligations under clause 37 the Commission should have regard to the facts and circumstances viewed objectively and the Commission should consider the reasonableness of the process as a whole and have regard to, when considering the fairness, the fairness to employees considered as a whole. The Commission should not, in our submission, determine reasonable steps by reference to the particular outcome of a process, if the Commission finds that the process itself was fair and reasonable. So the Commission should not assess it having regard to the outcome. And the Commission should not assess it on a continuing basis, having regard to particular employees or particular circumstances of employees.

PN2334

Rather, in our submission, the Commission should look at all of the facts and circumstances which were relevant at the time, and look at the process as a whole which Qantas applied, or the steps as a whole which Qantas took to discharge its obligations, and if those steps and that process were viewed objectively, reasonable and fair, having regard to the circumstances, then the Commission should not then look further behind that and look at the particular effect on individuals or whether particular suggestions put by a union were or were not adopted as some measure of the fairness of the process.

PN2335

In contexting the process, can I take the Commission briefly back to the circumstances of 9 March and the announcement of the closure of the Sydney heavy maintenance base has of course been the subject of earlier proceedings before the Commission. The Commission will recall that soon after the announcement of the closure a number of the Qantas unions, including the ALAEA, commenced proceedings in the Commission and sought orders which were directed in general terms to Qantas’ obligations to consult and, as part of consultation, the provision of information.

PN2336

The Commission heard in two stages those matters. The first one involved applications by the AMWU and the AWU. That application was the subject of a decision of the Commission on 13 April, PR971590. I only want to take by way of a refresher the Commission to some of the factual findings that were the basis for the orders which were made by the Commission. At the time at which the proceedings were determined it was clear that the decision to close the Sydney heavy maintenance base resulted in 480 jobs being lost and at that time there were limited redeployment opportunities. So the expectation was that there would be something in the order of 340 positions that were to be made redundant and that there would be compulsory redundancies.

PN2337

Indeed, it was the fact that there were to be compulsory retrenchments which provided the jurisdictional basis for the Commission’s orders because the unions sought orders under section 170FA and 170GA of the pre-reform Act. And those orders are only available to the Commission where there is a finding that the employer proposes to terminate more than 15 employees. So everybody proceeded very clearly on the basis that the closure of the Sydney heavy maintenance base would result in compulsory redundancies and that would be significantly more than 15 people and the unions were of course very keen to ensure that there was an adequate opportunity to consult with Qantas about the measures that would be taken to try and minimise the numbers of compulsory redundancies or the adverse effects of those redundancies.

PN2338

It is clearly not the case, as Ms Doust has submitted to you, that there was some expectation from the outset that everybody would be accommodated and that there would be some ongoing process which would not be exhausted until everybody had a job. On the contrary it was absolutely the position communicated to all employees and all unions on 9 March that Qantas expected redundancies would be inevitable - and when I use the term “redundancies”, I mean compulsory redundancies.

PN2339

Indeed, the information session provided to unions on the first day made that very clear. The presentation which was DR1, which is attached to Mr Ratcliffe’s statements and Ms Doust took you to this on page 8, on a the slide headed, “What does this mean for Sydney heavy maintenance”, it says:

PN2340

A number of compulsory redundancies will be unavoidable.

PN2341

Now, it goes on to say:

PN2342

However, attempts are being made to mitigate and minimise compulsory redundancies.

PN2343

And Ms Doust very quickly slipped from “mitigate” to “minimise” to “avoid”. But it is absolutely clear that employees were told on 9 March there will be compulsory redundancies and make your decisions in the light of that. And that’s the important point. Qantas said there will be compulsory redundancies and then the expression of interest form was provided and employees were invited to exercise their options and express an interest in each of the preferences in the light of the fact that some people would be retrenched. It wasn’t, as I think is now being suggested, look, there’s going to be some positions which are redundant, but we’re going to do everything we can to make sure everybody is accommodated in the business. So sit tight and you’ll be all right. It was a very different message given to employees.

PN2344

DR2, which is the information kit that employees in heavy maintenance got, again makes the question - they point very clearly to heavy maintenance employees on page 2. It says:

PN2345

There will be limited redeployment opportunities for those employees who do not have a position that is retained.

PN2346

And these are on the attached check list and people were given the check list which set out where the positions were. So employees made decisions between 9 March and 31 March which was the date at which the EOIs had to be completed. They made decisions about their future based on the information from Qantas that there would be compulsory redundancies and that there were limited redeployment opportunities. Mr Ratcliffe and Mr Harris, I think, have both expressed the opinion that a number of people took voluntary redundancy on the basis of that information, a number of people took interstate opportunities based on that information and a number of people in fact accepted lower positions.

PN2347

So when one considers the fairness of the process, one needs to take into account that Qantas was absolutely upfront with the employees and the unions at the outset about the enormity of the task that was ahead of it and that the redeployment opportunities which were going to be genuinely pursued, did not in Qantas’ view - or would not in Qantas’ view, meet everybody’s circumstances. The fact that the redeployment process succeeded so spectacularly and so many people were redeployed is attributed to a number of factors, one of which is that a large number of people accepted voluntary redundancy. Qantas would not have been able to redeploy as many people as it did were it not for the fact that as QF1 shows, over 100 people took a voluntary redundancy and exited the business.

PN2348

In the context of any future redundancies it would not be too big a stretch to assume that there will be far fewer percentages of employees in any future redundancy program who will be available for voluntary redundancies. The Commission should assume that everybody who’s in the business now, who wants to take a redundancy, will have already exercised that option. So that was one reason why Qantas succeeded, as to the extent that it did. The second reason was that it took extraordinary steps to create redeployment opportunities and it did so by investing a significant amount of time and resources in the process. And Mr Ratcliffe talks about the team of people in his department which were given specific responsibility for overseeing the process. Mr Roelandts was one of those people who had as his particular job, managing the redeployment for heavy maintenance people and his evidence explains what he did.

PN2349

The steps which Qantas took as part of its process to attempt to accommodate people were, firstly, after the VRs have been processed, to immediately open up for expressions of interest in taking voluntary redundancy other areas outside heavy maintenance in Sydney, so the ACS and the components area in Sydney were immediately part of the EOI. Soon after, that was opened up in response to negotiations with the ALAEA Qantas agreed to open up ACS ports outside Sydney for people in those departments to express an interest in redundancy and DR4 sets out the particular terms of that agreement. It’s clear from DR4 that it was an agreement reached pursuant to the facilitative provisions and it was specifically - it was an agreement which specifically addressed the obligation to - on Qantas to try and mitigate or minimise compulsory redundancies in heavy maintenance by opening up the opportunity for jobs loss.

PN2350

The process by which Qantas then managed the job swap process was comprehensive. It decided to make all vacancies in ACS subject to merit based selections and that decision itself ensured fairness to all employees and it ensured that there would be some degree, as much as possible, of objectivity in the selection of people for vacancies in ACS. There was a merit based selection process then developed. There was selection criteria developed which would be the measure against which people were selected, and those criteria took into account length of service and skills and experience of the employees and I think Mr Ratcliffe’s affidavit sets out what the criteria were.

PN2351

The criteria selected, in our submission, were inherently fair and appropriate criteria. There has been no serious challenge to the appropriateness or fairness of the criteria as we can understand it from the unions’ evidence. And there’s no particular complaint, as we understand it also, from their case about the outcome of the selection process. It’s not been part of the unions’ case, or they’ve certainly not brought any evidence to substantiate this if it is, that anyone got a job in ACS who shouldn’t have got a job or that criteria not applied fairly or equally to any employee, or that there was any bad faith or lack of propriety in the way in which the process was conducted by Qantas. So that process in itself was inherently fair.

PN2352

Ms Doust I think has talked about fairness by reference to the rules. There were no rules. There was a clear process and it’s important, in our submission, that the process was applied equally to all employees; or, to put it another way, that the same process as applied to all employees. Unfairness would arise if some employees got the benefit of one process and other employees got the benefit of a different process. I think Ms Doust suggested that DR4 in itself was a changing of the rules. That’s not correct, in my submission. DR4 was an agreement which was reached which opened up more vacancies. The vacancies were all filled by reference to the same process though. All DR4 did was maximise opportunities for redeployment of heavy maintenance LAMEs.

PN2353

No ACS positions were interviewed for and filled prior to DR4, so it’s not the case that positions were opened up in Sydney and people were interviewed and accepted jobs and then found out that, well, actually there’s an ACS job in another port that I could have applied for. DR4 was made on 5 April. The evidence, I think from Mr Roelandts and the interview guides that the employees themselves I think bears this out - shows that the interviews took place in respect of all ACS positions from the very end of April through to about early June. Mr Ratcliffe’s and Mr Roelandts’ evidence is that it ended up being quite a complicated process because they had to do multiple rounds. They selected, made offers, people then had seven days to accept or decline and then they went to second or third. But the same process was applied to everyone and that is, in our submission, a very important plank of fairness.

PN2354

It’s also a fundamental plank of fairness that Qantas made the same assessment in relation to a skills and experience match in respect of everyone. So when people expressed an interest in being made - in taking voluntary redundancy Qantas considered all of the people who had applied in that particular work area and then made the assessment having regard to the licence mix and skills and experience and leadership capability mix that they required for that area and then let some people go.

PN2355

So, for example, I think MH3, Mr Harris’ attachment which sets out the process, demonstrates that in Melbourne, for example, there were 21 EOIs received in total. I’m sorry, it’s MH1, Commissioner. It’s MH1 and it’s the second page in of MH1. By way of example, under Brisbane Mr Harris sets out that there were 21 EOIs received, 11 were accepted and 10 rejected. The reason for rejection was based on skill level, experience and qualifications, in particular A-330 licence coverage, et cetera. It then sets out all of the employees, who was accepted and who was not accepted.

PN2356

It would be a change to the process to now look, in isolation, at those 10 or 11 employees who were not accepted and now say, well, this person can go and someone else can go in there. The exercise of assessing who could go and who could not go was done in totality in the context of all of the EOIs in that area, and the skill mix and licence mix which the business had regard to was an assessment that it made when one was considering the whole of the work area. You couldn’t now try and make assessments about particular people’s skill and experience mix in isolation.

PN2357

As Mr Harris sets out in MH1, the business looked at in particular A-330 licence, but it was a mix of experience, qualifications and skill level. To now reopen the original assessment that 10 could go and 11 could not would be to compromise the integrity of the whole process and that would create unfairness, in our submission.

PN2358

Another important part of the process which underpinned the fairness of is that timeframes were set at the outset. On 9 March people were told, here’s your EOIs and 31 March is the closing date. I think there was some evidence that that date was extended a little bit because of particular circumstances and that agreement was reached with the ALAEA. But there were timeframes within which people had to generally make their decisions.

PN2359

All of the ACS positions were advertised. There were timeframes within which people had to apply for the decision and there were cut-off dates so that the selection process could be undertaken as open process. I think Mr Ratcliffe and Mr Roelandts’ evidence shows that over a very short period of time, from the end of April for about a two to three period, 200 interviews were conducted by a number of interview panels operating at the same time so that decisions could be made as close as possible at the one time as to who should fill the 81 vacancies. Everybody was assessed against the criteria and decisions were made at that time. Then there was then an offering and as - there was a ranking I think Mr Harris referred to so that if people didn’t accept their job someone else was able to be offered that job.

PN2360

It would be unfair to now in isolation create or impose an obligation on Qantas to create new positions so that people could put into those, particularly so given that each of the six individuals, with the exception of Mr Field - I’ll come to him - each of the six individuals did apply for ACS positions. They were interviewed and they were not successful in those positions. The relevance of that is this, Commissioner: these six people are not the only six people who did not succeed in winning ACS jobs in Sydney. 120 approximately, employees, were unsuccessful in their first preference for a position in ACS Sydney and the remaining 115 or so then had to make other decisions, whether that was to take a VR or to go interstate or take another position.

PN2361

But over 120 people against this selection process missed out on a job in ACS. As Mr Harris said, Qantas is not suggesting that any of those people were inherently unsuitable for the jobs. It’s simply that there were far fewer jobs than there were applicants. In that situation it would be unfair to now say, well, there are six people who haven’t got the jobs. The jobs they want are jobs in ACS Sydney and I’m satisfied that it’s reasonable for them to want to stay in Sydney. Therefore Qantas should create jobs for them. That would be to create an injustice or unfairness for all the other employees who were also unsuccessful in ACS positions.

PN2362

It would be unfair, not because Qantas is making any moral judgment about the reasonableness or otherwise of these people wishing to remain in Sydney, that is not a relevant consideration. I mean it would be unfair because it is a process which has not been applied equally and available to everyone, and it would be unfair because people have made decision accepting that what Qantas said about the finite number of vacancies and the likelihood of compulsory redundancies was true.

PN2363

There is no evidence from the ALAEA to suggest that the adverse effects of retrenchment will be any worse for these employees than they would have been for anybody else who was in the frame for redundancy who may have taken some other role. There’s no evidence that the Commission could point to that would support a view that they are more deserving in the job than any of the other employees who may have taken the voluntary redundancy, and I think Mr Cousins - yourself said that their view is that you can call it voluntary redundancy but there’s only really compulsory redundancy and we would not disagree that although it’s a VR, there was certainly some element of inevitability facing people which may have coloured their decision. There’s no evidence that these people are more deserving than any of the other people who may have accepted VRs already, or may have accepted transfers or other positions. There is evidence from Mr Ratcliffe though that, based on his knowledge - personal knowledge of any of the employees in heavy maintenance, that it became know that some employees, as a result of these proceedings or otherwise, were now to be given jobs in ACS Sydney, he would have a riot on his hands. He would have a number of people complaining to him of the unfairness of additional jobs being created and made available for people in ACS Sydney and he is someone who has dealt face to face with a lot of the employees involved, and I think Mr Roelandts’ evidence also along these lines that it would be grossly unfair on other employees if that was to be now accommodated.

PN2364

It’s not the ALAEA’s case, as we understand it, that any employee who was put into an ACS position should now be displaced and replaced with one of these people. It appears to be that the burden falls entirely on Qantas to just accommodate them and I think it’s suggested that, well, Qantas is a big organisation, what’s six people. You could just find positions for six people. In our submission, that would not give any regard to or appropriate weight to the need for Qantas to treat all of its employees fairly and reasonably and it would compromise the integrity of the process and would undermine significantly the efforts that Qantas has taken over the last ten months through a fair and reasonable process discharge its obligations under the agreement. And its obligations of course are not contrary to what Mr Cousins might think - it is not to do everything it possibly can to avoid retrenchments.

PN2365

If that was the nature of his obligation one would wonder why you had clause 37 or part (d) in the EBA. Clause 37 is headed “Redundancy” and 37.1.2 says:

PN2366

The company agrees that retrenchments shall not be declared until such time as all aspects of such retrenchment have been discussed with the association.

PN2367

The retrenchments were declared on 4 August. The evidence shows that prior to 4 August Qantas had discussed at length with the union the proposed retrenchments and in particular and importantly, had specifically discussed the annual leave proposal and the job swap and further ACS redundancy proposals which are really what the ALAEA now puts as its main case. They had been discussed on 26 July, the ACS ones, and on 3 August, two days after, the union raised them for the first time and they were discussed before retrenchments were declared. So Qantas met its obligations under 37.1.2.

PN2368

37.2:

PN2369

In the event that retrenchments are inevitable regard will be given to a number of principles.

PN2370

Those obligations were accommodated right from 9 March because it was on 9 March that Qantas believed retrenchments were inevitable. The whole process which was designed and implemented had regard to last on/first off and the other matters, and also importantly the need to retain the necessary skill mix within the business. The obligation to take reasonable steps to arrange or assist in obtaining suitable alternative employment is clearly an obligation which was met in full by the whole process which Qantas implemented from 3 March, not just through till 4 August when retrenchments were formally advised but even at the time at which employees were formally given notice of retrenchment. Each of those employees were offered six-month fixed term secondments in transitional roles which was a further attempt to allow them an opportunity to pursue redeployment opportunities during that period.

PN2371

So the whole process we rely on to demonstrate that Qantas took reasonable steps. I think the - yes. Part D which is redundancy entitlements, imposes some other obligations. They’re not in our submissions substantively different but it’s clear that parties will try and minimise redundancies. There is no obligation imposed on Qantas to avoid redundancies or obviate redundancies. It’s a primary obligation is in relation to part D to consult with the ALAEA and there be no real questions that it’s done that.

PN2372

I said at the outset that there were two underlying themes to the ALAEA’s case, which is really you haven’t complied because you haven’t done what we wanted. Can I just refer to Mr Cousins’ evidence, because I have had a brief opportunity to look at the transcript of Monday. The paragraph commences 332. Mr Cousins says:

PN2373

We wish to find employment for these individuals which would show that we have found employment for those last remaining redundants in heavy maintenance employees.

PN2374

Pausing there, I just note that QF1 would suggest that that’s not the case. There are in fact still 13, not 6. At PN333, I asked the question:

PN2375

Is the purpose of these proceedings to seek a remedy from the Commission which will result in these six people being accommodated in employment within Qantas?

PN2376

Mr Cousins says:

PN2377

Well, we expect Qantas to fulfil reasonable obligations to finding all these individuals re-employment. Yes, that’s the line we’re following.

PN2378

And I said:

PN2379

You say in paragraph 8 that It’s the ALAEA’s position in regards to the closure that there should no forced redundancies in Qantas. That’s been the ALA's position from the outset, has it not?---Yes.

PN2380

And that remains the position?--- Yes, that is our position.

PN2381

And that is the position of the ALAEA regardless of what Qantas says we can do or has done to accommodate them. He says:

PN2382

We believe obviously that everything needs to be reasonably and in our EBA it states “to obviate” which for us means reasonable actions to accommodate all those redundancies out of the system basically.

PN2383

Pausing there, if Mr Cousins’ evidence is intended to suggest that he believes the obligation on Qantas is to obviate the redundancies, well, we clearly say that that is not what the EBA says. Then finally:

PN2384

Well, your position is that there should be no forced redundancies, full stop, isn’t it?---Yes, at this present time, yes.

PN2385

Now, perhaps not a surprising position for the union to take but it is a position that the union has pursued throughout these proceedings and it is directly contrary to the obligations that are in fact imposed on an employer, or on Qantas, by EBA form. I’ll just do a final run of my notes, Commissioner, but I think that’s all I wish to put to you.

PN2386

Perhaps if I could very briefly say this in relation to the individuals, and we don’t, in doing this, intend the Commission to take from this that that we are saying as a matter of merit each of these individuals should not be given the benefit of any discretion which the Commission would otherwise find, so we don’t take this to be in any way a particular criticism of the individuals. Rather we rely on these relevant circumstances to support our primary submission that Qantas has taken reasonable steps.

PN2387

If I could put it this way: Ms Doust submits that the individual circumstances are matters that the Commission should have regard to in considering whether the steps are reasonable. We say that’s not so. One looks at the reasonableness of all of the steps that were available regardless of the effect of those steps on the individuals, and approaching it on the way we say it should be approached. We say the Commission should at least have regard to the fact that, as is shown in LR1, a number of these six individuals were offered redeployment opportunities within Qantas. We don’t criticise them for not taking them but we are entitled, in our submission, to rely on as evidence of the reasonableness of our actions that offers were made to them, in particular - and I know he’s not given evidence in the proceedings but in particular Mr Burns.

PN2388

Mr Burns was made an offer for a position in ACS in Adelaide which he rejected. He was subsequently offered and accepted a position in engineering services in
Sydney but after a number of weeks he decided to withdraw his acceptance of the offer. So Mr Burns had two opportunities, one out of Sydney, one in Sydney. Mr Ortega was offered a position in ACS Cairns. That was in good faith in response to the express form that he completed which indicated that he would be prepared to consider a position in Cairns. He rejected that offer.

PN2389

Mr Field only applied for a promotional position. Mr Field’s position, you may recall, Commissioner, was that he was a senior LAME. When all of the ACS vacancies were advertised, as Mr Ratcliffe explained, there were a number of promotional opportunities created by Qantas allowing ACS people to take the ..... promotional or senior positions. Qantas decided the only fair things would be to allow ACS LAMEs to apply for promotional position as well as heavy maintenance LAMEs given that they were promotional. Mr Field is s a senior LAME. He elected to only apply for a maintenance supervisor or duty maintenance manager position, which is in turn a promotion from a senior LAME position. He was unsuccessful and it was only after he was unsuccessful in his application for a promotional position that he raised with Qantas whether a senior LAME position would be available to him and he was told that the time limit had closed and those positions had been filled.

PN2390

There is no evidence that Mr Field ever applied for a LAME role in ACS, although in cross-examination he did - and it’s not clear whether he was in his answer turning his mind specifically to the possibility that there would be a LAME position available but I did ask him whether he would be prepared to accept a position in ACS Sydney if the Commission required us to offer him one and he said yes, but in his earlier answers he - I think it’s clear he was talking about senior LAME roles but, in any event, in relation to Mr Field, I’m instructed that there has been some discussions with him and obviously still waiting to hear back from him as to whether or not he would be prepared to accept a LAME position in ACS. And I think if he was prepared to accept a LAME position Qantas would make a LAME position in ACS available to him.

PN2391

This would be a position that Qantas would effectively create for him and it is in response directly to his evidence in these proceedings that he appears to have been given some indication that he would be offered one although we do, to the extent that it’s necessary, rely on the fact that Mr Field did not in any way take action consistent with the desire to accept that offer and in fact within two weeks of receiving that letter from Mr Reid which I think was 24 July, suggesting that the grievance committee had decided that he should be offered a position and someone would be in contact with him shortly, he signed and accepted the six months’ secondment which was at a higher salary than a LAME role, and he also received and did not appear to raise any concern about the apparent contradiction, his letter of 4 August advising him formally of his retrenchment.

PN2392

Both circumstances, viewed collectively, tend to suggest that he does not and at that time did not intend to or wish to accept any LAME role but we are in the process of clarifying that with him and on my instructions, if his position is that he will now accept a LAME by way of redeployment then Qantas will be prepared to make that available. So Mr Fiend, in our submission, is out of the picture either way because he’ll either accept it and is not redundant or he won’t accept it and if he wasn’t to accept it then we would certainly invite the Commission to take that accounting in any event so we should be put to one side. I think they’re the only particular individuals --

PN2393

THE COMMISSIONER: Is it this?

PN2394

MS MCKENZIE: Yes, I think those are our submissions.

PN2395

THE COMMISSIONER: There is only one small matter. Remember that point that the April agreement between the two parties, it wasn’t clear there, it wasn’t set out - that heavy maintenance could apply to Brisbane ACS. The argument - Qantas’ view is, no, heavy maintenance could not go to Brisbane ACS because Brisbane heavy maintenance had spots and that’s not reflected in that agreement that on it’s face - what do you say about that?

PN2396

MS MCKENZIE: I think Mr Harris deals with the sequence of events relevant to this, Commissioner, and I’ll just - the agreement was reached on 5 April and the position was that initially only positions in Sydney were to be opened up for expressions of interest for redundancy arising out of this agreement. It was agreed that there would be an opportunity to test expressions of interest for ACS positions in Brisbane and Qantas had the discretion to determine whether there would be an appropriate match between the skills and experience of an ACS person in another port and a heavy maintenance person and if there was the appropriate skill match, or match between the skills and experience, then the heavy maintenance will be offered the position.

PN2397

The timing - I think I just - Mr Harris deals with that - paragraphs 8 onwards, it’s QF5, he says the agreement was reached and the EOIs were invited from ACS LAMEs and as a result of that a number of heavy maintenance people went into ACS positions. At the time at which this agreement was reached, there were still vacancies in Brisbane heavy maintenance. The purpose of this agreement was to maximise the opportunities for heavy maintenance people to be offered employment. There were heavy maintenance positions in Brisbane which Sydney heavy maintenance were able to perform.

PN2398

Qantas’ position was clearly and, in our submission, sensibly that if a heavy maintenance person was in Sydney there was the best skill match - best match of skills and experience, if that person was to go to a heavy maintenance position elsewhere in the business, in particular Brisbane. So the skill match - the way in which the skills and experience match would be conducted was in the first instance to fill heavy maintenance positions. And if there was then further opportunities for voluntary redundancy, to go to ACS. I don’t think this was the subject of any cross-examination of Mr Harris in relation to this but DR4 is not inconsistent with - perhaps I’ll put it this way. A process which said in the first instance we will fill heavy maintenance vacancies outside Sydney and then after we’ve filled heavy maintenance we’ll go to ACS, is entirely consistent with DR4.

PN2399

If it had been the case that there were no vacancies in heavy maintenance Brisbane or if in the course of the process there was sufficient LAMEs from Sydney who wished to go into heavy maintenance positions in Brisbane, and those positions were filled and there were still people in ACS in Brisbane who wished to take redundancy, that would have created additional vacancies. But the timing of the process didn’t ultimately go to Brisbane ACS because no LAMEs in heavy maintenance in Sydney applied for and wished to go to the heavy maintenance vacancies in Brisbane. And when one considers - and I think Mr Harris explained the way in which the skills and experience match was to be adopted, it was a sensible approach to that to take the view that the first priority - when you’re filling positions outside Sydney, the first priority was to match the skills between heavy maintenance positions.

PN2400

Clause 4 of DR4 supports that because it contains an express acknowledgement by the union that the assessment of suitable skills and experience would be at the sole discretion of the company. DR4 didn’t create any entitlement on the part of anybody to be given a redundancy or to be given a particular position by way of filling behind a redundancy. Qantas retained the discretion and the guiding principle was the assessment of suitable skills and experience and consistent with that discretion Qantas assessed the skills and experience and gave priority or preference when it was allocating vacancies in Brisbane to the filling of the heavy maintenance positions. And I think Mr Ratcliffe explains how there’d been vacancies there since October 2004.

PN2401

But what Qantas did do, which is above and beyond DR4, and which was not the subject of a particular agreement, Qantas agreed to permit double swaps, or double shuffling so that there were 11 people in Brisbane ACS who were allowed to go and then they were filled by ACS people who were prepared to go to Brisbane. I think that the evidence was in relation to Melbourne that there were no employees in ACS Sydney who applied for positions in ACS Melbourne. So no one got to go because no one in Sydney applied to go down to Melbourne.

PN2402

THE COMMISSIONER: Yes. Ms Doust, anything in brief response?

PN2403

MS DOUST: Yes. Briefly in reply, I certainly have to applaud Ms McKenzie’s ingenuity, can I say, in the way that she put that last argument to you but respectfully must very much differ with her because the evidence that we heard from Mr Ratcliffe yesterday was very much to the contrary of how she’s put it to you. I think on the - I can’t remember whether it was yesterday or Monday, Commissioner, you kindly offered us the opportunity perhaps to review the transcript and add anything additional and we will take you up on that opportunity, particularly to review the evidence.

PN2404

It was clear, we say from his evidence, that there was never any skills assessment that took place which determined that the Sydney having maintenance employees would be ore suitable for Brisbane heavy maintenance. it was clear from his evidence that a business decision was made at around the time this agreement was entered into, to not consider the Sydney heavy maintenance employees as against line maintenance employees in Brisbane.

PN2405

There is no skills match process as is described in paragraph 2, carried out by someone on their lonesome somewhere making a decision that it’s better for the business if we don’t do what’s in 2 but we think about those people for somewhere else. Ms McKenzie also bemoaned the fact that there had been no applications for heavy maintenance positions in Brisbane. As I went to earlier, the heavy maintenance positions in Brisbane weren’t included on the expression of interest form, so her attempt perhaps to piece together bits and pieces of evidence and to try and safe it, what occurred was actually the very living out of the obligations in 2 with respect that it falls a fair bit short of the mark.

PN2406

I have some brief points to make in reply. First of all, Ms McKenzie said something about this is really about 13 people. No, you might recall earlier on in the process that appeals were lodged for a large number and in the course of consideration larger numbers were contemplated. This is a proceeding about six people and we should know, we’re the applicant. Ms McKenzie said that in relation to the appeal that there was something deficient because there was very little in the way of grounds and substance. I’d ask you Commissioner, to have a look at the letter of appeal sent by the ALAEA which invites the company to respond, to advise how they wished to proceed with matter so that the ALAEA could obviously put its case in accordance with that process, whether it was to be done a group or singularly or so on. There was no response to that invitation simply the later correspondence which says: look, your notion of an appeal is misconceived.

PN2407

So there can be no sort of criticism about the union or the individuals because they failed to put a more substantial case to the company when in fact the company didn’t even see fit to respond to those appeals until some considerable time later and basically indicated they were not interested in engaging. With respect to
Ms McKenzie, the subs about clause L just apply common sense, if she seriously is submit that as of 9 March that the way to proceed would have been for the ALAEA to lodge appeals in respect of 260-odd LAMEs as opposed to waiting until the point where people were in fact definitely tapped to go. That’s just an absurd situation.

PN2408

Ms McKenzie made a point about the terms of clause 37.3 that requires retraining - or that refers to retraining, not the sorts of training about which we referred - our point is this: if you say that 37.3 doesn’t comprehend the sorts of trading that we’re talking about, there can be no question that 4A of the April agreement. You’ll remember the clause that: Assessment of skills sill be at the social of the company in had an addendum about training and you remember that you accepted Mr Ratcliffe’s evidence that he accepted that What we say that certainly creates those sorts of obligation ad the very those obligations tell us something about what steps are reasonable to take.

PN2409

Ms McKenzie, I think referred to the date of 22 December which is referred to in clause 16. we accept but obviously that must move to move to something within the time frame that were now dealing with. But perhaps more substantial, Ms McKenzie says this: that the ALAEA’s case is all about its proposals not having been accepted by Qantas and really what’s sought here is for our proposals to be accepted by Qantas. There’s two answers to that. She says our only obligation is consultation. There are a couple of answers to that and the first is this: any consultation has to obviously be real and substantial.

PN2410

How can you, Commissioner, determine whether the consultation is real and substantial? Well, you look at, for example, the responses given by the company and, as I said before, whether there’s a reasoned and rational basis to them. We have sought in these proceedings to interrogate the basis of Qantas’ responses to us and, in large part, we’ve come up short. In the case of Mr Harris it really comes down to this: he says: I trust what my managers tell me and you should trust what I tell you. In our view, that is no way for this Commission to proceed in exercising the discretion that it has under a dispute settlement procedure to determine a dispute between the parties. It should be put in the position of being able to assess the validity, if you like, of each of the parties’ positions.

PN2411

So a simple assertion, trust me, because I trust someone else, is really not sufficient, and that was effectively - that’s effectively what the union was told back in 3 August, 26 July, it’s the same thing that we’re being told now. Just on this point about this is really about the ALAEA stamping their feet and insisting that we must have our way, and Ms McKenzie took you to the evidence of Mr Cousins where he said, yes, he was seeking a position where there was no forced redundancies. We don’t back away from that position and we are entitled to maintain that position and there is nothing in that position that is inconsistent with clause 37. Ms McKenzie speaks about it as if there was a promise at some stage that there will be compulsory redundancies. We will deliver that pain, that pain is an absolute fait accompli. Well, in our submission, that’s not the way you should proceed. The obligations under clause 37 are for the company to take reasonable steps. If by taking reasonable steps all compulsory redundancies can be avoided, then what is the harm in that, and what is the vice in our position.

PN2412

I mean, in one sense that submission made by Ms McKenzie is contradicted by the later acceptance she said that all of the redundancies that had occurred through the process were in a sense forced redundancies, so we say the submission she’s made about Mr Cousins’ position, something that you would have regard to.

PN2413

As to this distinction between mitigate, minimise and so on and the nature of Qantas’ obligations again we say you have to look at the spirit of clause 31 - sorry, clause 37. Clause 37.1.2 talks about an endeavour to obviate the retrenchments. So the steps taken by Qantas, consultation, reasonable steps, et cetera, are to be directed towards avoiding retrenchments. So in our submission, and again this is similar to the position put by Mr Harris: we say, no, therefore trust us. Ms McKenzie’s position is: we talk to you so that’s the end of it. No, our submission is consultation has to be real, genuine, has to be substantial, has to be based on reasoned grounds and so on. And that has to be directed towards avoiding the retrenchments so far possible.

PN2414

I think the assertion that Mr Ratcliffe’s evidence was that there would be a riot, I certainly don’t recall it being put that high. I think he said, yes, one or two unnamed employees had mentioned something to him and I don’t think you should Ms McKenzie’s assertion as reflective of his evidence, but in any case, it is an assertion which stands in stark contrast to the history of these events. What we have here is a closure of a very large department at a large airport, critical sort of type of work being performed, a number of people with very long service being adversely affected and there has not been a squeak since the day of the announcement of the closure of any industrial stoppage.

PN2415

Rather, to the contrary, there’s been every indication along the way of cooperation both from employees in going through the redeployment process and from the union in trying to sort these issues out. So the assertion about the riot that’s shortly to fall down about our ears, we placed in the same category as what Chicken Little was saying a couple of years ago the sky.

PN2416

Ms McKenzie deals with the fairness point by saying there would be unfairness - now, not because there’s a change of rules, but because there’s different processes being applied. And again this is just obfuscation because Mr Ratcliffe’s objection was there are some rules, these rules aren’t being applied. Now we’re told these are different processes. In our submission what we’re putting is a continuation of the process that commenced back in April. And it was a fundamental element in that process that there were various jobs which were available at different times throughout the process. So to the extent that Ms McKenzie attempts to suggest that everything that has gone on since 9 March until 1 August or whatever is part of one simple process, I think with integrity - that’s the term used I think by her and Mr Atwell-Harris - that characterisation of the process is not correct because it has been piecemeal and different opportunities have arisen at different times. It is not the application of a different process now to continue to attempt to accommodate volunteers and accommodate those employees who remain without positions.

PN2417

Just on that point about integrity, I say again this is obfuscation. It shouldn’t confuse the consideration of the issues and it’s really a hollow term because what I say about that is what is the value of integrity in a process unless the integrity has some sort of meaning. So if maintaining the integrity of a process would create an injustice, what is the value of maintaining the integrity? What one has to look at in this matter, the ultimate question is what are reasonable steps that can be taken by the company. In our view, reasonable steps include having a capacity and a process to allow for the sympathetic circumstances of particular individuals. There is I think as much injustice in not having any guidelines as there is in using guidelines inflexibly and not having any regard to the particular circumstances of a given case. That’s something that we say is uncontroversial but in any process that is adopted of retrenchment or redeployment there needs to be the capacity to consider the individual circumstances.

PN2418

Indeed, Ms McKenzie I think said to you, you have to look at this process. First of all, she said you have to look at all the facts and circumstances of the case to determine what reasonable steps are. And in her very next breath said, you shouldn’t look at the individual circumstances. In our submission, the first sentence was correct. One has to look at all the facts and circumstances of the case to be able to measure whether the steps taken have been reasonable. So those are the only matters I think that we need to say in reply, Commissioner, unless there’s anything further.

PN2419

THE COMMISSIONER: Yes, thank you.

PN2420

MS MCKENZIE: Commissioner, can I - sorry to do this, can I trouble you for one minute. Can I say one thing in relation to DR4, and this is not by way of response but I think in the circumstances I perhaps should just put it on the record that it was no part of the ALAEA’s case in-chief that Qantas had not complied with or otherwise breached DR4. And it was therefore no part of the evidence which Qantas prepared and called by way of reply to the ALAEA to deal with that allegation.

PN2421

The allegation really came out in cross-examination and I have put submissions based on the evidence before the Commission. But in the event that the Commission is to - was to take into account or give consideration to making some adverse finding based on the evidence in relation to the application of DR4, I would request an opportunity to put further information in relation to that because we’re just conscious that it wasn’t part of the case we thought we were meeting. It came up as an allegation.

PN2422

If something is to be made of the fact that Mr Harris, being the group general manager, didn’t have the detail, it would, in my submission, be unfair if we’re not given an opportunity to respond to that because I’m just conscious that I have not - I may not have been instructed in relation to that and it now seems to be something which is relied upon and it wasn’t part of the evidentiary case in-chief. So if it’s something that the Commission regards as relevant to its determination, we’d request an opportunity to fully inform the Commission and the ALAEA as to what we say about an allegation that we didn’t comply with that agreement. If it please the Commission.

PN2423

THE COMMISSIONER: Yes. Ms Doust, any last - - -

PN2424

MR DOUST: Just in response, we’d say it’s clearly raised in the amended notice and Mr Gant was cross-examined about it.

PN2425

THE COMMISSIONER: Anyway, I hear what you say. The Commission will reserve its decision and is conscious of the timeframes required.

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