C2007/946, Transcript of Proceedings [2007] AIRCTrans 650 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17780-1

COMMISSIONER WHELAN

C2007/946 C2007/3705

s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Application by Australian Municipal, Administrative, Clerical and Services Union
(C2007/946)

MELBOURNE

10.11AM, FRIDAY, 16 NOVEMBER 2007

PN1

THE COMMISSIONER: Mr Nucifora, you’re here by yourself, is that right?

PN2

MR J NUCIFORA: Yes, Commissioner.

PN3

THE COMMISSIONER: I have had some correspondence from Qantas in relation to these matters. One piece of correspondence is a copy of a letter that was actually sent to you and then I have had further correspondence this morning which I understand the upshot of which is that one matter is agreed and the other matter you’re going to notify me you don’t wish to proceed with. Is that correct?

PN4

MR NUCIFORA: Yes, Commissioner.

PN5

THE COMMISSIONER: All right. Thank you. So, on that basis, I will note that the application in C2007/3705 is now withdrawn and I’ll proceed with the application in C2007/946.

PN6

MR NUCIFORA: Thank you, Commissioner. I might just clarify that in the most recent email - communication received from Qantas, it was an email earlier this morning, and it requests that I appear for Qantas as well as the - I think it’s the first time I have ever appeared for anyone other than the ASU or an employer. So they have entrusted me to be here today and consistent with - what I would like, Commissioner, if that could be placed on the file.

PN7

It need not be tendered as an exhibit unless you wish, Commissioner, but just to confirm that that is the position, that the ASU has agreed to withdraw the application in this particular award, the Airline Operations - Salaried Staff - Qantas Information Technology Limited Award in its - described administratively, like most other if not all other awards as a transitional award so we have withdrawn that application and we’re only, as you say, in C2007/946, concerned about this award as a pre-reform award and therefore we’re only concerned with a section 553(1) application.

PN8

Commissioner, what I might request is if I could tender as an exhibit a copy - a bundle of documentation which confirms that the employer was notified on 29 October 2007 and that in fact that there was notification of course confirmed by the communication from Qantas. It also contains the relevant draft order.

PN9

THE COMMISSIONER: So that’s evidence that they were served with the draft order?

PN10

MR NUCIFORA: Yes, Commissioner. I have just realised I only have one copy of that but I think that was emailed through - - -

PN11

THE COMMISSIONER: I think I have received a copy of a transmission report, is that correct?

PN12

MR NUCIFORA: Yes, Commissioner, and that was for the letter - that ought to be a transmission report for a letter to Mr John McKenzie, the industrial relations - - -

PN13

THE COMMISSIONER: That’s right, addressed to Mr McKenzie.

PN14

MR NUCIFORA: 29 October 2007. And contained within that, and I’m happy to - if I could tender that as an exhibit.

PN15

THE COMMISSIONER: Yes.

EXHIBIT #ASU 1 CORRESPONDENCE, TRANSMISSION REPORT FOR CORRESPONDENCE SENT TO MR MCKENZIE AT QANTAS BY ASU RE VARIATION ON 29/10/2007 AND NOTICE OF LISTING OF APPLICATION

PN16

MR NUCIFORA: Thank you. Commissioner, of course we’re - as I mentioned earlier and you had acknowledged, this is a - we’re now only concerned with the application to vary this award for expense and work-related allowances.

PN17

THE COMMISSIONER: Yes.

PN18

MR NUCIFORA: And of course consistent with the Wages and Allowances Review Decision of 2007 in print PR002007 handed down by the Full Bench on 16 August 2007. Commissioner, the application in terms of lodgement - it was lodged on 23 October 2007 and the expense related allowances have been adjusted in accordance with the relevant change in the CPI and the work-related allowances have been adjusted in line with the furnishing and glass decision.

PN19

Commissioner, if I may, I know this is contained with the documentation but I’m happy to tender as an exhibit a copy of the relevant draft order before you in this application, C2007/946.

PN20

THE COMMISSIONER: Yes.

EXHIBIT #ASU2 DRAFT ORDER

PN21

MR NUCIFORA: Thank you, Commissioner. The draft order in this application refers to a number of allowances in items A1 to 7 and they include on-call calling, social disability, a meal allowance and a payment for working overtime. Now, the methods of calculation for those variations are contained within Exhibit ASU1.

PN22

THE COMMISSIONER: Yes.

PN23

MR NUCIFORA: And of course Mr McKenzie confirms that they have now checked the method of calculation and they otherwise consent to the variation. We do have an operative date of 8 November and, Commissioner, I might just add we’re grateful for your indulgence in postponing the hearing - or adjourning the hearing on the - originally set down for 8 November and postponing until today. We would be happy for today’s date to be the operative date.

PN24

THE COMMISSIONER: Okay. So it’ll be 16 November.

PN25

MR NUCIFORA: 16 November. Commissioner, there are various tests of course for the variation of pre-reform awards when we seek to vary awards to maintain minimum safety net entitlements. I won’t go through all of those but I can, if you wish. But I would particularly refer you to the provision of section 552(1)(c) and then 553(2) and 553(4), and in particular (4)(b) where there are various tests in relation to providing minimum safety net entitlements for employees bound by pre-reform awards.

PN26

We say it meets all those requirements and in particular there is one that refers to of course agreements. There is currently an enterprise - a bargaining agreement that’s being negotiated between the ASU and Qantas which of course coincided with these applications. But we say if the Commission needs to be satisfied the variation is essential to maintenance of minimum safety net entitlements, of course we’re aware of course of the fairness test that now applies. And so we are quite concerned, whatever the future of awards, that the pre-reform awards are certainly kept up to date.

PN27

THE COMMISSIONER: Are maintained, yes.

PN28

MR NUCIFORA: Are maintained and are kept relevant. And as I say, there is consent by the employer and if I have leave to appear for them I can confirm in person that there is consent and we seek to have the draft order approved operative from today’s date.

PN29

THE COMMISSIONER: Thanks, Mr Nucifora. As I indicated before, I had received correspondence from Mr McKenzie which did indicate that you would be appearing for Qantas this morning in relation to this application and I had also received previous correspondence from Mr McKenzie which was a copy of a letter sent to you in which he indicated that Qantas would consent to the award variation sought in relation to the pre-reform award.

PN30

I am also satisfied, on the basis of the material that’s before me and your submissions, that the variation that is sought to this award complies with the terms of the Full Bench decision in relation to the review of wages and allowances and that each of these allowances are allowable and that the application meets the requirement of maintaining the safety net in relation to this award. Clearly also it’s not going to inhibit bargaining between the parties as that’s already occurred. On the basis of the material me I’m satisfied that the application should be granted and that the award should be varied in accordance with the draft order as submitted. The order will come into force from the first pay period to commence on and after 16 November 2007. That variation will be published shortly and provided to you. Thank you, Mr Nucifora.

<ADJOURNED ACCORDINGLY [10.21AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU 1 CORRESPONDENCE, TRANSMISSION REPORT FOR CORRESPONDENCE SENT TO MR MCKENZIE AT QANTAS BY ASU RE VARIATION ON 29/10/2007 AND NOTICE OF LISTING OF APPLICATION PN15
EXHIBIT #ASU2 DRAFT ORDER PN20