C2007/297, Transcript of Proceedings [2007] AIRCTrans 83 (26 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16502-1

DEPUTY PRESIDENT BLAIN

C2007/297

QANTAS AIRWAYS LIMITED
AND
TRANSPORT WORKERS’ UNION OF AUSTRALIA
s.496(1) - Appl’n for order against industrial action (federal system).
(C2007/297)

PERTH

2.12PM, WEDNESDAY, 14 FEBRUARY 2007

Continued from 13/2/2007

PN682

THE DEPUTY PRESIDENT: I regret the slightly late start of these proceedings due to a prior hearing going on that was scheduled for. I now turn to the matter before me noting that this is a part heard matter. Yesterday, in the afternoon, this matter was heard in terms of submissions and evidence and I adjourned the matter overnight to allow the Commission to reflect on what had been put during the hearing. I also noted, as I recall it, that there was an opportunity if the parties wished to have private discussions with each other, that that was open to the parties if they so chose and that if any such discussions occurred and were successful, that might assist in the conduct of this matter.

PN683

I would ask first for a report back from each party as to whether or not there have been such discussions or indeed any further developments that the Commission should be aware of in this matter before proceeding further. Mr Parker?

PN684

MR PARKER: Sir, acknowledging the matter is part heard, however I also acknowledge that the parties' cases have closed, so it would be inappropriate of me to attempt to bring more material before the Commission. What I can say in relation to the matters that you concluded the hearing with last night is that on my instructions there has been no resolution, if I can call it that, sir, no resolution such that Qantas would not continue to press for the orders that they're seeking. So, sir, from that point of view there'd be no change from the position that I put to you after the brief adjournment you gave to the parties throughout the hearing. May it please the Commission.

PN685

THE DEPUTY PRESIDENT: Yes, thank you for that, Mr Parker. I'll ask Mr Hodgson, the respondent to similarly give me a report back.

PN686

MR HODGSON: Good afternoon, your Honour. There have been some discussions amongst the officials and delegates of the Transport Workers' Union and the result of those discussions is that we are prepared to abide by the decision of the Commission in this matter and I concur with Mr Parker that there hasn't been a resolution of the matters between us, if it please the Commission.

PN687

THE DEPUTY PRESIDENT: Thank you. Did you mention discussions with officials and - - -

PN688

MR HODGSON: Yes.

PN689

THE DEPUTY PRESIDENT: Did that include delegates and members?

PN690

MR HODGSON: Delegates - I had discussions with the State Secretary, Mr Rick Burton, the organiser, and a number of the delegates involved.

PN691

THE DEPUTY PRESIDENT: And that preparedness to abide by any decision of the Commission, do I take it that that is a statement that reflects the position of all relevant officials and delegates?

PN692

MR HODGSON: Yes, absolutely, yes. I mean, the view was there's not going to be any more industrial action, so whatever happens doesn't matter. If an order is handed down, as far as the workers are concerned, it has no meaning and it's irrelevant. If an order is not handed down, well, you know. So whatever the Commission decides, it's not really of consequence either way to the workers.

PN693

THE DEPUTY PRESIDENT: Thank you for that. That assists the Commission. I am mindful that I did, in the course of the hearing, raise a number of questions which have been discussed with you. I'm informed by those responses. I am mindful of my duty under the Act. I have raised some concerns to the parties but there appears to be one or more important questions that perhaps could be clarified further and I would address, in the first instance, Mr Hodgson, and I would ask if you would clarify again and confirm what you did put to me, as I understand it, yesterday, and that is that you have given a clear and unequivocal undertaking on behalf of the respondent that there will be no further stoppages or industrial action in relation to the matter that led to this application.

PN694

I wonder if you would confirm that that undertaking exists and I'd ask you to address, giving me the confirmation of that undertaking, that it would apply in circumstances where there was a situation that the investigation that's underway, as I understand it, came down with a finding which was not the one that the respondent might wish to have made in relation to the suspension, and of course, this is not a matter for the Commission. This is a matter for the parties, but what is of interest to me is a clarification and confirmation of your undertaking that, even if the finding went against the wishes of the respondent that indeed there would be compliance with the requirements of the disputes procedure.

PN695

MR HODGSON: Thank you, your Honour. I understand the question, both of them. I wouldn't have said that what I gave yesterday on the record was an undertaking per se. It's more - to be honest, I'm quite happy to give that to you now, you know, but I don't want to mislead the Commission given that it is on the record and I wouldn't have characterised it as an undertaking. What I was saying yesterday is more an opinion and a very informed opinion about where the matter was going to progress in terms of the processes involved in how the union deals with these kinds of disputes and how the union deals with the company, if it's my labouring on process issues rather than the factual basis of the dispute.

PN696

But I'm happy to give that undertaking now, your Honour, and that is the TWU undertakes not to take any further industrial action in relation to the matters that triggered, if I could use that expression, the 496 application, quite happy to give that undertaking, and in terms of the investigation, the second part of your question, if there is a finding that may or may not be against the person or persons' view, then I can undertake on behalf of the TWU that that will be dealt with through, if it at issue - I'm not sure whether it is - but if it is an issue or becomes an issue, then that will be dealt with through the disputes procedure within the certified agreement.

PN697

Now, I've spoken to Mr Burton, as I said, this morning and ever since Mr Burton's got involved in this dispute there's been no further industrial action and his involvement was around yesterday afternoon. I spoke to Mr Shannon just before coming here this afternoon about that very matter. What happens if there is a finding that you don't particularly agree with and he said, well, he will take instructions from the union and do what's in the best interests for the union and I clarified that with him and he said that that does not involve promotion of further industrial action.

PN698

THE DEPUTY PRESIDENT: Thank you.

PN699

MR HODGSON: So I've spoken to the organiser involved. He intends to have a meeting with the workers as soon as he gets back from up north and the undertaking that I've put here on the record will be conveyed to the members at that time.

PN700

THE DEPUTY PRESIDENT: Thank you, and I'd like to ask you if the undertaking that you've just given the Commission would apply to any action that the applicant might take in bringing in any other members of the applicant from outside Perth, that if the applicant, in relation to this matter, did that, I'd seek an undertaking that in that event there would be no further stoppage or industrial action taken by the respondent?

PN701

MR HODGSON: Yes, your Honour, I can give an undertaking on behalf of the TWU that there will be no industrial action or stoppage or whatever in relation to outside employees, what I referred to as "scabs" yesterday, but I think that's something that's happened in the past. I don't necessarily think that that's an issue at all. In fact my discussion about this dispute has never really been raised. I mean, I might have laboured the point yesterday for other reasons, but it doesn't come up in the discussions with the officials. It's not the burning issue, put it that way, your Honour.

PN702

THE DEPUTY PRESIDENT: Yes, thank you. When I referred to an undertaking, perhaps I should clarify that it's my recollection that the Commission did raise the question of an undertaking early on in the proceedings yesterday and my recollection is that you had indicated that you could say categorically that no industrial action was taking place and so perhaps in that sense, that categorical statement that I had in mind when I used the word undertaking, but that's only by way of background. You have answered the question that I have raised and I do not consider at this point that I need to ask you anything further in relation to the matter and I take it, in conclusion, however, that you have put to me that there has been on disruption at all today to the operations of the applicant.

PN703

MR HODGSON: Yes, that's correct.

PN704

THE DEPUTY PRESIDENT: Yes, thank you. Having raised those questions with the respondent I'd like to give you an opportunity, Mr Parker, if you wish to comment on anything that's been said or indeed, anything else that you think I need to hear from the applicant before progressing this matter.

PN705

MR PARKER: Sir, I guess by way of comment in relation to occurred today, sir, and I perhaps might just inquire about the status of what we're putting before the Commission now. Whilst I'd said previously I didn't think it was appropriate to seek to put further matters before the Commission, clearly, sir, and you are interested in the current status, if I can call it that, including the current status of the union's position, so in those circumstances in response, I think I'm duty bound to put to you Qantas' position on my instructions about the current status, and that is still, and remains, a position of great concern. Great concern informed by what I'm instructed were events of today when Mr Jones handed in his response to the allegations that had been made against him, something which he had to do in the workplace.

PN706

Notwithstanding that he was stood down, on my instructions that then led to persons making contact with the TWU and Mr Hodgson, as I understand it, from the TWU making contact with Qantas to ask about what was going on. That is how hot this issue still is. None of the delegates on my instructions have returned to work as yet, and I raised that yesterday as a real issue of concern for Qantas. There's been no contact back from any of the delegates on my instructions further to the attempted telephone calls from Qantas yesterday, so nothing back, and still, on my instructions, nothing further from the wider union apart from the call that I've mentioned from Mr Hodgson.

PN707

Now, sir, in those circumstances all of the very serious concerns that I raised yesterday remains and, sir, whilst Mr Hodgson has put to you that he's had discussions with Mr Burton who it appears whilst he was told about the strike during the strike from the evidence yesterday, still has not been in contact with Qantas on my instructions other than shortly before this hearing a message was left with Ms Kop concerning catching up in the next day or say and I don't have instructions exactly what about, but that certainly suggests it's not about resolving the matters before the Commission given the timing and when that discussion is to take place.

PN708

So, sir, the only other discussion Mr Hodgson can refer to with any person directly involved in the strike that occurred and the issues that occurred is with Mr Shannon and, sir, I just don't know that what's been put to the Commission is clear and unequivocal enough even in relation to Mr Shannon. But there's two other delegates who were, clearly, on the evidence involved and there's a whole set of members who clearly haven't been consulted about this either and the only update I can provide is what I've already put to the Commission about what is apparently an issue of burning concern to those members simply when Mr Jones turns up on site to hand in his response.

PN709

Sir, all of that in my mind actually raises further concern, still a deafening silence from the union and yet a little bit further, a growing concern that there's, to put it as I did yesterday, an environment that's right for industrial action. Sir, those have been my comments in relation to what I've heard today and, sir, I'm happy to take instructions now, sir, as to whether there's any disagreement with what I've put on behalf of Qantas or anything further, but I don't wish to further delay the Commission but, sir, I think it's fair to say that nothing that we've heard this morning really changes the position and, indeed, as I say, I'm duty bound in response to put what I understand to be the current position and that is really no change from yesterday and in fact that passage of time with no change along with the events I've already described I think heightens the concern. Those would be my submissions, sir.

PN710

THE DEPUTY PRESIDENT: Thank you. What may be of concern to the Commission is your submission that none of the delegates have returned to work. Are you putting it to me that they should have returned to work or that they - - -

PN711

MR PARKER: No, sir, no, I'm sorry, they have not yet commenced their roster, although I do understand that, as was part of the evidence yesterday, Mr Shannon was due to return to work yesterday afternoon, but did not. Sir, I don't know the full status of that, but the other two delegates, Mr White and Mr Murphy, on my instructions, are due to commence a roster early tomorrow with Mr Shannon due to commence another rostered period of work tomorrow afternoon.

PN712

I understand that's the position, so, sir, the concern is that these persons have not returned to the workplace and these delegates are the persons who were clearly behind organising this industrial action on the evidence and once those persons return there's still a heated environment that they return to and we've heard nothing, sir, I would submit, that gives any guarantees about their behaviour on behalf of the union in relation to the union membership.

PN713

THE DEPUTY PRESIDENT: So in response to my question you're putting that it's not that any of the delegates have or are taking industrial action.

PN714

MR PARKER: Correct.

PN715

THE DEPUTY PRESIDENT: It's that they have not returned to the workplace yet.

PN716

MR PARKER: That's correct, sir.

PN717

THE DEPUTY PRESIDENT: Not that they have been required to go back, but they're not due to go back until some later time.

PN718

MR PARKER: Correct, sir, other than in relation to Mr Shannon who, for reasons I don't know, did not attend for a rostered period of work yesterday afternoon and that was part of the evidence, that he was due to work. Ms Kop was unsure because it was during the hearing as to whether he had worked, but sir, there's no allegation at the moment on my instructions that that's a period of industrial action.

PN719

THE DEPUTY PRESIDENT: No. Would you wish to speak briefly with your instructors?

PN720

MR PARKER: Sir, I think that would be prudent given the questions that you've put to both the parties today so that I can confirm my instructions as to whether there's anything further. So I'd be grateful for that opportunity.

PN721

THE DEPUTY PRESIDENT: Yes, certainly. Would you wish to do it informally or would you like an adjournment?

PN722

MR PARKER: A very brief adjournment, sir, would suffice, of a few minutes, say, five minutes if it pleases the Commission.

PN723

THE DEPUTY PRESIDENT: Yes, yes. If you could do that and I may ask, after you've done that, for Mr Hodgson to address if he's able to in relation to Mr Murphy and Mr White, as I understand it the two other delegates, is that the case?

PN724

MR PARKER: That was the evidence yesterday, sir.

PN725

THE DEPUTY PRESIDENT: Yes. That being the case, no objection, Mr Hodgson, to an adjournment?

PN726

MR HODGSON: No, your Honour.

PN727

THE DEPUTY PRESIDENT: So if the parties wish to confer during the adjournment, please do so. We'll adjourn for a few minutes.

<SHORT ADJOURNMENT [2.36PM]
<RESUMED [2.46PM]

PN728

THE DEPUTY PRESIDENT: After the adjournment, Mr Parker, if you can give me any further comments in relation to the respondent's position?

PN729

MR PARKER: Yes, sir. Sir, thank you for that brief adjournment and opportunity to take instructions. Sir, I've taken instructions that confirm that those instructions are really to confirm what I had previously put and that there is no change to Qantas' position that it still seeks, sir, to have all this made by the Commission on the basis already submitted. I'm grateful for that opportunity, sir, thank you.

PN730

THE DEPUTY PRESIDENT: Thank you. I would now take up the comment I made earlier in relation to Mr Hodgson, which was to allow you to comment on anything that was said by Mr Parker, perhaps to clarify your position further by way of what the Commission has asked for and perhaps in so doing, if you might be able to comment in relation to Mr Shannon. As I've understand it you've put to me earlier today that he has undertaken to take instructions from the TWU, but is there anything you are able to put to me about him not returning to work as I understand it yesterday, is that the case?

PN731

MR HODGSON: Yes, that's correct. He was scared, your Honour. He's absolutely petrified of returning to work. He didn't know whether Mr Jones, the other person involved in the threats, was going to be at work or not at work or - he was wandering around the workplace today and no one knew why. They did ring the TWU. I rang Ms Kop, spoke to the people manager, I forget her surname, I'm sorry, and she said it was part of the investigation and I conveyed that information to the - it was merely an inquiry. It wasn't - - -

PN732

THE DEPUTY PRESIDENT: Yes.

PN733

MR HODGSON: My view I expressed before I made the phone call to the - I can't remember who I was talking to now was that it's probably part of the investigation. I didn't think that the company would have made a decision to put Mr Jones back into the workplace, that just didn't make sense.

PN734

THE DEPUTY PRESIDENT: Yes. So what you put to me is that there's nothing, as you see it, from the respondent's point of view that Mr Shannon is in any way engaging in any stoppage of work or is not willing to comply with the broad undertaking that you've given to the Commission earlier?

PN735

MR HODGSON: No. All the delegates will comply with what they're directed to do. I mean, the reality is this dispute has gone beyond just a little bubble in the workplace and they will be directed tomorrow at a meeting or whenever Mr Burton conducts that meeting and they will be told, there will be no more industrial action about this matter at all.

PN736

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Hodgson. I don't intend to drag these proceedings out, meaning that I don't intend to go over matters further that have already been dealt with at some reasonable length. So if there's no further input from either party, what I propose to do is just have a very brief adjournment just to reflect on what's happened here this afternoon as well as perhaps some final consideration to the events of yesterday and then return with a view to indicating what my decision will be.

PN737

With that in mind I think, taking into account that this process shouldn't be unduly prolonged either, I think probably 10 minutes will be sufficient for the Commission to do that. So on that clock, it will probably be about five past 3, the Commission will return and until then the matter is adjourned.

<SHORT ADJOURNMENT [2.51PM]
<RESUMED [3.06PM]

PN738

THE DEPUTY PRESIDENT: Overnight and during the latest adjournment I have carefully considered the cases of the parties and am now in a position to deliver a decision. It has been prepared at short notice without the benefit of transcript and I will give short oral reasons only. I reserve the right to edit my decision and to issue full written reasons later. The background to this case is that on 12 February 2007 at approximately 5 pm Qantas Airways Limited, the applicant, filed application number C2007/297 under section 496 of the Workplace Relations Act 1996.

PN739

The matter was allocated to me at approximately 8.30 am yesterday on 13 February 2007 and was listed for hearing at 2.15 pm yesterday. By leave the applicant was represented by Mr Parker of Blake Dawson Waldron and the respondent was represented by Mr Hodgson, an official of the Transport Workers' Union. I am satisfied that an attempt to conciliate this matter was made by the Commission but did not proceed on the basis that there was not agreement between the parties.

PN740

I adjourned the matter last evening and it was listed for 2 pm today. Having conducted a further short hearing to receive updates and further comments in relation to the application I'm now in a position to progress the matter. The applicant is seeking an order under section 496(1). That provision reads:

PN741

Orders and injunctions against industrial action generally, orders relating to action by Federal system employees and employers. (1) If it appears to the Commission that industrial action by an employee or employees or by an employer that is not or would not be protected action (a) is happening ...(reads)... or (c) is being organised, the Commission must make an order that the industrial action stop, not occur and not be organised.

PN742

The relevant certified agreement which governs the employment of the employees is the Transport Workers' Union Qantas Airways Limited Enterprise Agreement 6, which has a nominal expiry date of 1 July 2008. The relevant aspect of section 496 to the matter before me arising from submissions to the Commission is that the section provides that if it appears to the Commission that industrial action is impending or probable, then the Commission must make an order that it not occur.

PN743

The Concise Oxford Dictionary defines "impending" as "about to happen" and "probable" as "that may be expected to happen or prove true or likely". I note that there is a clear distinction between the words "possible", which is a word that doesn't appear in the provision, and the word "probable". The Concise Oxford Dictionary defines "possible" as "that can exist, be done or happen". That distinction, it seems, is of some significance in the present matter.

PN744

The Commission has a duty to act impartially, not taking the side of either the applicant or the respondent. It is not a sufficient basis for the Commission to issue an order because one party, in this case the applicant, believes, even passionately believes, that industrial action is impending or probable. On the material put before me in properly constituted proceedings I must be able to form the requisite judgment, namely that that material enables me to decide impartially that industrial action is impending or probable.

PN745

The grounds set out in the application do not contain a great deal of supporting detail. I accept however the submissions of the applicant supported by the relevant evidence of Ms Kop, the Airport Manager for the applicant, who was a credible witness, that unauthorised stoppages occurred intermittently on the afternoon of Monday, 12 February 2007 as a result of three separate decisions by TWU delegates at the airport in Perth. I also accept the evidence of Ms Kop that there was major disruption to the operations of the applicant as a consequence of these stoppages and further, that there is also a significant cost impost to the applicant.

PN746

I further accept her evidence that the travel plans of many hundreds of passengers were disrupted, that flights were cancelled and many others were delayed. From my understanding of what has been put to me these stoppages were clearly in breach of the disputes procedures in the relevant certified agreement. Such breaches are most unfortunate and are a very serious matter and are not to be condoned in any shape or form. However, the respondent has itself acknowledged in this hearing that these breaches may be capable of being remedied in another jurisdiction as distinct from the present forum and that they are not a matter before me in this proceeding.

PN747

If this application had been heard whilst any of the stoppages were in progress and the Commission was able to be satisfied that one or more of the stoppages constituted industrial action as defined by the Act, then an order, in all likelihood, would have been issued by the Commission stopping such unlawful action. But it is not sufficient for the applicant to demonstrate that intermittent stoppages or industrial action occurring in the past, in this case in the course of one afternoon or evening, and then to go on and say that because of this, this means that further stoppages are probable in future.

PN748

If the applicant had been able to bring to bear clear evidence that there was a culture or indeed, repeated patterns of unlawful action over a prolonged period of time, this may have been the case, but this has not been done in the matter before me. I have now received a clear undertaking on transcript from the respondent that it has no intention whatsoever to engage in any further stoppages, safety meetings or industrial action in connection with this application. Further, Mr Hodgson has indicated that an instruction will be given to the members at the airport not to so engage in any further industrial action. These are recorded in the transcript which will become available to the parties.

PN749

Another issue is that industrial action might be probable on the submission of the applicant if the outcome of the disciplinary proceedings against the suspended member of the applicant are not to the liking of the respondent's members. In this regard I again sought a specific undertaking from Mr Hodgson who has informed me that any further concerns b y members of the respondent will be dealt with in accordance with the disputes procedures in the certified agreement.

PN750

This undertaking has been extended in response to a question from the Commission, in respect to any members of the respondent who would not initiate any industrial action concerning the flying in of persons from outside Perth. I note again the submission of the applicant that the position is one of great concern. I accept the evidence of Ms Kop that trust has been broken down between the management and the three delegates concerned. Whilst this is regrettable it does not by itself provide me with a sufficient basis to conclude that industrial action is probable, as distinct from possible in the future, a distinction which I commented on earlier.

PN751

Further, I am unaware of any evidence that was put before me to the effect that any person, any delegate or relevant employee has indicated any intention to engage in any further stoppage. Whilst I might well conclude that it appears to me that industrial action is possible, this is an insufficient basis to issue an order. I note that since the application was lodged there's been no suggestion put to the Commission that any further industrial action has occurred. I would comment that the Act does not outlaw all industrial action in all circumstances in the future.

PN752

The power for the Commission to stop industrial action is carefully defined in section 496 and that statutory provision must be satisfied before an order can issue. In the circumstances of this case reflecting carefully on all of the material that has been put before me I decline to issue an order because it does not appear to me on the material that I can reasonably conclude that industrial action is impending or probable.

PN753

However, in so doing I sound a note of caution to the respondent. If the undertakings given to the Commission and the applicant are not strictly adhered to, in the event that a subsequent application might be brought to the Commission associated with any such breach of an undertaking the respondent should not accept any sympathy from the Commission. Mr Hodgson, you bear a burden of responsibility in this matter. I dismiss the application. We will now adjourn.

<ADJOURNED INDEFINITELY [3.25PM]