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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18213-1
VICE PRESIDENT WATSON
C2007/3649
s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Transport Workers’ Union of Australia
and
Qantas Airways Limited
(C2007/3649)
MELBOURNE
10.01AM, WEDNESDAY, 05 MARCH 2008
Continued from 12/2/2008
Reserved for Decision
PN1
THE VICE PRESIDENT: Any changes in appearances?
PN2
MR B JOHNSON: Your Honour, just a minor change. With me appearing today is MR W MADER for the TWU.
PN3
MR N OGILVIE: Your Honour, I seek leave to appear on behalf of Qantas Airways Limited, with me MR P SMITH from Qantas.
PN4
THE VICE PRESIDENT: Yes, leave is granted, Mr Ogilvie. Mr Johnson?
PN5
MR JOHNSON: Yes, thank you, your Honour. I might open the proceedings this morning by giving a brief outline of the nature of our case and that is that fundamentally we see that Qantas are seeking to apply the terms of the Transport Workers' Union Qantas Airways Limited Enterprise Agreement 6 which I will refer to as EBA6, inappropriately. The provisions that are in contest centre around clauses 18.5.8 of the agreement and 28.4.3. These provisions both relate to what may be referred to as changes in the shifts that are worked by employees at Qantas at Melbourne Airport and essentially the dispute focuses around rosters, the requirements of the company to issue rosters and thereafter to stick to the roster that they issue.
PN6
We see this matter as certainly focusing on the quality of life that our members are entitled to enjoy under this agreement and under a bargain which they have made with their employer and said that's the case, but they should be entitled to rely on a roster that they are provided with seven days' notice. The flux and change of modern day life means that employees very much rely on being able to predictably look at their roster and examine the roster so that they can structure their life and engage in proper social and family activities in order to enjoy the full fruit of their labour.
PN7
Your Honour, I'll only be calling one witness today and that's Mr Vince Angerame. We have filed a statement for Mr Angerame in accordance with the directions and we also received, with thanks, the facsimile from Freehills which contained a statement for Kathy Robertson as well as their submissions. I note in a light hearted manner that I've received a - I'm not sure if it's a demotion or a promotion of some sort, but certainly the fax that was addressed to Brendan Nelson at the Transport Workers' Union, I didn't take as a compliment. Certainly in the union we rely on popularity figures far in excess of seven per cent. However I can confirm that I have not adopted the leadership of the Federal Liberal Party.
PN8
THE VICE PRESIDENT: I didn't notice any resemblance, Mr Johnson, if it's any comfort.
PN9
MR JOHNSON: Thank you, your Honour. That being said, we'd rely on the submissions that we have filed in accordance with the directions and maintain the basis upon which we have put our case in relation to those submissions. I would like to call Vince Angerame as our first witness, if it pleases the Commission.
THE VICE PRESIDENT: I'll mark the outline of submissions for the applicant, the outline dated 22 February 2008, exhibit J1.
EXHIBIT #J1 OUTLINE OF APPLICANT SUBMISSIONS DATED 22/02/2008
PN11
THE VICE PRESIDENT: We will now call Mr Angerame.
MR JOHNSON: Thank you.
<VINCENT ANGERAME, SWORN [10.06AM]
<EXAMINATION-IN-CHIEF BY MR JOHNSON
PN13
MR JOHNSON: Mr Angerame, I note that you have taken with you to the stand a copy of what I assume is your statement. Can I ask you to first of all just confirm for the record your name and address?---Yes, it's Vincent Angerame, (address supplied).
PN14
Can you confirm that that is the statement that you have with you?---Correct, that's the statement.
PN15
And this is a statement that you prepared for the purposes of these proceedings?
---That's correct.
PN16
Are there any additions or modifications that you wish to make to that statement?
---No, that's pretty straightforward.
PN17
Can you confirm that the contents of this statement are true and correct?---Yes, that's true.
Your Honour, I wish to tender the statement of Mr Angerame.
EXHIBIT #J2 STATEMENT OF VINCENT ANGERAME DATED 21/02/2008
MR JOHNSON: Your Honour, I have no questions for the witness.
<CROSS-EXAMINATION BY MR OGILVIE [10.07AM]
PN20
MR OGILVIE: Mr Angerame, I'll just get you to look at paragraph 4 of your statement?---Yes.
PN21
And there you talk about the fact that on Tuesday, 12 February you'd arranged to travel to Christchurch?---Correct.
PN22
And you say you were originally rostered from 5 am to 11 am?---That is correct.
PN23
And then on either the Saturday or the Sunday before, you received a phone call from one of the people in the planning and they advised that your shift had been extended from 5 am to 12.30 pm, is that correct?---Yes.
PN24
I think Kathy Robertson will be giving evidence in these proceedings and she will say that Qantas' records show that the call was actually made to you on the Friday. Could that be correct?---Could have - it could have been. I wouldn't take much notice of - - -
**** VINCENT ANGERAME XXN MR OGILVIE
PN25
It's possible?---Yes, it was - - -
PN26
Yes. And on that day, on that Tuesday, you didn't actually work right up until 12.30, did you?---Yes, I did.
PN27
You did?---Yes.
PN28
You actually left, finished work at about 12 o'clock, is that right?---The shift was 12.30.
PN29
12.30, so your evidence is you worked right up until 12.30 on that day?---The shift that - the shift - - -
PN30
The shift was to 12.30, but you actually left slightly early, about half an hour early, that's correct, isn't it?---No, I didn't leave early or anything, no.
PN31
You didn't leave early?---No, I swiped out at whatever time it was, 12.30, was it?
PN32
Qantas, it's not in Ms Robertson's statement, but Qantas has got evidence that you actually didn't swipe out on that day. Do you remember that, and filled in a failure to swipe form for that particular day. Does that ring a bell?---I filled in a swipe form because I noticed on my pay sheet that it said it's not - had not swiped, had not registered, or something.
PN33
And your supervisor actually allowed you to go a little bit earlier that day, didn't he?---We'd finished, yes, yes.
PN34
So that was - - - ?---Yes, yes.
PN35
So you didn't actually work right up until 12.30, did you?---No.
PN36
It would have been about 12 o'clock when you finished work?---Twelve or quarter past it might have been.
No further questions, your Honour.
<RE-EXAMINATION BY MR JOHNSON [10.10AM]
PN38
MR JOHNSON: Mr Angerame, you mentioned that you did actually seek to swipe the card at the end of the shift?---Yes, yes, that's right.
**** VINCENT ANGERAME RXN MR JOHNSON
PN39
And you filled in a failure to swipe form after?---I didn't read it. Once I realised that it didn't swipe, register.
PN40
And I believe in cross-examination you indicated that a manager authorised your early departure, is that correct?---Yes, he said I could go, yes.
I have no further questions.
<THE WITNESS WITHDREW [10.11AM]
PN42
MR JOHNSON: Your Honour, I just seek leave to have Mr Angerame relieved from further attendance.
PN43
THE VICE PRESIDENT: Yes, you may be excused from further attendance, and you may remain if you like. Is it appropriate that you lead your evidence now, Mr Ogilvie?
MR OGILVIE: I think, your Honour, I won't - but we'd seek to call Kathy Robertson to give evidence, your Honour.
<KATHLEEN ROBERTSON, SWORN [10.11AM]
<EXAMINATION-IN-CHIEF BY MR OGILVIE
PN45
MR OGILVIE: Ms Robertson, have you prepared a witness statement for the purposes of these proceedings?---Yes, I have.
PN46
Have you had a chance to look through it recently?---Yes, I have.
PN47
I want to hand the witness a copy of that statement?---Thank you.
PN48
To the best of your knowledge is that statement true and correct?---Yes, it is.
I seek to tender that statement, your Honour.
EXHIBIT #O1 STATEMENT OF KATHLEEN ROBERTSON
PN50
MR OGILVIE: I just have a couple of very brief questions, your Honour.
PN51
Ms Robertson, paragraph 3 of the outline of submissions that were prepared by the TWU to these proceedings says that, "Rosters are generally provided to part time employees with seven days' notice and where Qantas require additional hours to be worked they request part time employees to work those hours by offering extended shifts to part timers." What is the practice for the Melbourne Ramp in relation to providing rosters?---Qantas Airways at Melbourne Ramp Services, your Honour, provides rosters for staff with a minimum of seven days' notice in accordance with the award. We change our schedule, we have two significant periods during the year where the airline schedules change based on the northern hemisphere change of season at end of March and end of October. At that stage the organisation reworks the rosters based on the new schedule and we give a minimum of seven day's notice. As the weeks progress beyond those states we do tend to build up the notice period so that we can provide rosters for a period up to four weeks. So we issue seven days, we start at seven days, then we go to two weeks, then three weeks, then four weeks. So we build up so that we are issuing a roster at seven days but it's commencement date is four weeks in advance, and we do that in an attempt to provide all staff with as much notice of their working requirements based on the information we have at that particular time. We are mindful of trying to give as much notice in a shift working environment as we can.
PN52
When did you personally first become aware that there was a dispute or an issue between the company and the TWU in relation to this matter?---Yes. Your Honour, to the best of my recollection the matter was first raised in weekly discussions that we have with our union delegates. We have them every Tuesday and the matter was first raised verbally, approximately the beginning of August 2007.
**** KATHLEEN ROBERTSON XN MR OGILVIE
PN53
And why do you think it was raised in August 2007, in your view?---Yes. I believe it was raised at that time because at that time we had implemented our new manpower planning system, known as IRoster. That was implemented between 26 April and 3 May 2007 and so we'd had it in place for a couple of months and the significant change to that was that we were able to plan out at minus four days, or four days in advance of the day of operation and it became very clear that we had a tool to better utilise the information we were getting and to give staff as much notice as we could of changes and that was a change to the way we used to under the previous system where we didn't get that information or that data, and we had the system in operation for a couple of months at that point at the beginning of August and I believe that that was the reason it was raised at that time because it was becoming clear to the delegates that there was a change and they were getting feedback because they were able to do changes which resulted in single time payment rather than the previous overtime payments.
PN54
Can you just explain, why does it result in single time payment rather than previous overtime payments?---Because we believe that there's a provision that allows the organisation to do shift changes at greater than 48 hours' notice.
Thank you, Ms Robertson, no further questions.
<CROSS-EXAMINATION BY MR JOHNSON [10.16AM]
PN56
MR JOHNSON: Just on that last point that you've mentioned there, you said that as a result of the changes introduced - sorry, withdraw that. You said that the changes that you introduced resulted in the payment of single time rather than overtime, that's correct, isn't it?---In accordance with the aware provision, yes, because we - - -
PN57
And previously you're paying overtime for hours that were changed as a result of you advising employees of roster changes?---Yes. The system we used previous to IRoster did not give us a real time data and we would only plan the day of operation the day beforehand. So we call that minus 1. So today, for example, we would be planning tomorrow's operation and under the existing award provisions there is no capacity for us, we believe, to do shift changes at 24 hours' notice, so that was the reason we would do - or it resulted in overtime.
PN58
So these shift changes that you've engaged in since the introduction of IRoster, that's not a long standing practice within the company, is it?---We used to ask staff on day of operation and we still do ask part time staff if they will extend their shift in accordance with the award provisions and that was always undertaken - - -
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN59
Which provision is that that you're referring to?---Is that 18.5?
PN60
That's 18.5.8, that's the part time shift - - - ?---That allows us to seek by agreement on the day of operation to extend a part timer's hours at ordinary time.
PN61
Because I'm a little bit confused. How is it that you were previously paying overtime as a result of changing people's shifts?---Because we were notifying them of a shift change where necessary, where we had no alternative but to do that, we were not providing 48 hours' notice.
PN62
I see, and previously the company had not been changing people's shifts with greater than two days' notice, that's correct, isn't it?---On occasion we would do, absolutely, if - - -
PN63
But it would be with the agreement of those employees rather than compulsorily, that's correct, isn't it?---There were some occasions where, for part timers, for example, we would change. But where we had prior knowledge of people changing or people not being available for their shift, we would absolutely seek to change their roster with as much notice as we could greater than 48 hours, so I'll give you an example, your Honour. If we had an employee who had called in as being unavailable for work, for example, through sick leave and they were going to be away for a period of one or two weeks, our planning department would work in advance to try and cover those shifts and where we had notice prior to IRoster, and we still do it now, but prior to IRoster where we previously did not have a tool that gave us real time information, where we had a capacity to change people's shift, we would do so.
PN64
So the only real change has been as a result of IRoster, the company's changed interpretation of the agreement, that's correct, isn't it?---I don't believe there's a changed interpretation at all. What I believe is we now have a tool that allows us to plan at minus four days to the operation.
PN65
But there has been a change in the practice of the company?---No, I would not say there's been a change. I would say that the volume - - -
PN66
Why would there be a resultant payment of single time instead of overtime, if there's been no change?---I will answer your question this way, Mr Johnson, in that, as I've previously stated, where we had prior notice and a capacity to change people's shifts at 48 hours the business would do so. The fact is we now have a great - - -
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN67
But that's no change to what existed previously, is it?---By volume it was because we did not have a tool that gave us real time information. We would be doing the majority of our planning at minus one day. The vast majority of our planning was at minus one day. Now we have a tool that allows us in accordance with the award provisions to plan at minus four days and that is what the company does. It utilises the real time data to better plan its operation at minimal cost.
PN68
Well, I raise this with you because you've tendered a statement which you've now sworn as evidence, and in paragraph 20 of that statement you say that, "However there was more shift changes in the two days prior to the shift and accordingly greater overtime payments due to Qantas' inability to predict work load demands as far in advance." So in combination with the evidence which you've given in examination-in-chief that you're now paying single time instead of overtime for changed rosters, do you accept that there has been a change in the practice of Qantas in terms of its rostering of part time employees?---I accept that there is a greater opportunity now to do shift changes at minus 48 hours because we have better tools, but by inference you are implying - - -
PN69
That's not my question. My question is, do you accept that there's been a change in the practice of Qantas in its rostering of part time employees that has resulted in the payment of single time instead of overtime?---By volume, yes.
PN70
Thank you. Can you confirm that you're still currently the manager of Ramp Services at Melbourne Airport?---I am still currently as at today's date the manager of Ramp Services at Qantas.
PN71
How long do you expect to be performing that role?---I am transitioning away from that role slowly. I would expect that the transition would take between four to six to eight weeks depending on the appointment of a new manager.
PN72
What role are you moving to?---I'm moving to a role within the corporate airport's group, predominantly based in Sydney, your Honour, and that role has a title of Manager, Customer Management, Change and Communications, and it is a change management and engagement role based around the implementation of a new departure control system for Qantas Airways.
PN73
It's a bit title and is there a particular reason for that change?---Yes. I am advised there is. I'm advised that my success as the Ramp Services Manager at Melbourne Airport, my success in leading the implementation of IRoster within the Ramp Services environment and previous to that my work with changed management, implementing safety programs within catering in Melbourne Airport, I've been asked to assist the implementation team with the implementation of changed management and staff engagement across the network.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN74
I see, and did you prepare Qantas' submissions today, for today's hearings?
---Sorry, I'm - - -
PN75
Did you prepare the submissions that were filed for the purposes of this hearing?
---I didn't - no, I didn't prepare them. I worked with the preparation of my statement.
PN76
Did you prepare your statement for the purpose of this hearing?---Yes, I did, in conjunction with advisers from Qantas Airways.
PN77
Because I'm a little bit confused again because it appears that there are quite a number of paragraphs in your statement that identically reflect the submissions that have been filed in these hearings referring in particular to paragraph 9 of your statement which identically reflects paragraph 20 of the submissions, paragraph 10 of your statement identically reflects 21, paragraph 11 and 12 and 22, paragraph 13 reflects 19, 15 reflects 23, 17 reflects 24, 18 reflects 25 and 19 reflects 26. I'm just wondering whether you prepared your statement today?---I did prepare my statement. If I understand you correctly, Mr Johnson, you're inferring that I wrote both documents. I certainly prepared my statement in conjunction with the advisers from Qantas Airways and in consultation with their legal representatives. Did I have sole responsibility for preparing Qantas' statement? No, I did not. I certainly - - -
PN78
Did you have sole responsibility for preparing your statement?---I did prepare my statement in conjunction with the representatives from Qantas and from Freehills.
PN79
Can you explain how international flights are scheduled, please?---Yes. I mentioned earlier that for all of our client airlines, the largest of which is Qantas Airways Limited, and for our client airlines we do receive a broad schedule of their arrivals and departures based on season. That is, from generally the end of March to the end of October and again from the end of October to the end of March.
PN80
So you're able to anticipate with a fair length of time international arrivals and departures?---They give us a picture of how they think in a perfect world their arrivals and departures will look. Now - - -
PN81
But the sorts of changes that occur to international schedules are fairly few and far between, aren't they?---I would disagree with that. I would say that we receive many ad hoc changes to that schedule and those changes might be something as simple as instead of a 747 operation, having that particular flight, that aircraft may be downgraded which means - - -
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN82
And what time frame would that occur in?---Well, it can - well, it can be with a lot of notice, depending on the circumstances. If I could give you an example. If there is a client airline that has an aircraft go unserviceable with a significant problem, they will take it out of service for anywhere up until that aircraft is back on deck.
PN83
But you know that that's going to happen with seven days' notice, don't you?
---They would advise us, but equally we have situations where we're expecting a flight that is built into the system of a certain
aircraft type and then when we see it at minus one day or on the day of operation, instead of being a 747, we see that it's an A330
or it's a 767, for example, and that will be done due to aircraft changes by that particular airline.
PN84
And in that circumstance you would agree that the sorts of changes that occur in terms of aircraft type generally are less than two
days, aren't they?---We do
get - yes, we do get changes. Most - - -
PN85
But the majority of changes are less than two days, aren't they?---I wouldn't like to say whether the majority are. I don't have that information to hand, but certainly there are, Mr Johnson, a number of changes that occur on the day of operation. There are some changes that occur with a lot of notice, your Honour. So it depends. Often the biggest changes we would have on the day of operation would simply be of scheduled operations where the aircraft is late in arriving into Melbourne.
PN86
And you would agree that the data that you need to schedule the number of employees to work a particular time hasn't changed over time, has it?---Since the introduction of IRoster we have a lot more data that we never had.
PN87
But the data hasn't changed that you need in order to work out how many people you need to work on a particular aircraft, has it?---I would argue, yes, it has.
PN88
How do you say that?---Prior to IRoster - - -
PN89
No, not relating to IRoster. How has the data changed?---Well, we now have - we are now provided with the weight of the inbound and outbound aircraft, whereas previously that data came from different systems and we would have to interrogate different systems to get that data and then match it up to the best of our ability and it was problematic and not always reliable. Previous to that - - -
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN90
The need for data hasn't changed, has it? So you need some basic variables in order to calculate the equation with the answer being the number of employees required to - - - ?---That's true, yes. That's true, we have better data now than we used to have.
PN91
But that wasn't the question. The question was relating to the data that you need in order to work out the calculation for the number of employees you need to schedule. That was the question. That data hasn't changed, has it, the need for data hasn't changed?---The need for data hasn't changed. The volume and accuracy of the data we now get has changed, yes.
PN92
And the only change that has occurred is Qantas' interpretation of the agreement as a result of IRoster?---I disagree. I don't think our interpretation has changed at all. Our capacity to better utilise the tools has changed. We now have a better tool that provides us with accurate information in a more timely fashion that allows us to make business decisions and planning decisions at minus four days where previously we did not have a capacity to obtain that data.
PN93
Well, Qantas were still doing that previously. It's just the only difference is they were paying overtime previously, wasn't it?---We were not planning at minus four days, no.
PN94
Well, then why would you pay overtime in that case? What would lead to the payment of overtime as opposed to single time?---Because we were doing many, many more changes at the minus one day to the operation and unless I misunderstand the award, there is no provision for us to do shift changes for employees at less than 48 hours' notice.
PN95
In paragraph 8 of your statement you say that previously Qantas was not able to plan for changes in scheduled operations until the day they occurred. That's no different to the present situation, is it?---Off scheduled operations continue to be one of our problems on a day of operation, yes.
PN96
But you still have flights delayed because of fog and delays and aircraft traffic and that sort?---That is correct, that is correct. I would imagine that would happen forever.
PN97
And on the day, operational changes, operational reasons for changes will always occur, won't they, that's the nature of the industry?---Yes.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN98
And IRoster can't predict where planes are going to be delayed due to fog or because of traffic problems and that sort of thing, can it?---No, but it does present us with the data in a more timely fashion. It updates every 10 to 15 seconds.
PN99
And the rosters that are generated by IRoster you indicated that you aim to do that one month in advance of the day that's worked. That's really quite meaningless for a part time employee, isn't it, if what you're saying is correct and that you can change people with two days' notice?---It's the best we can do under the circumstances and none of us have a crystal ball, but based on the best information we have at that point in time they are the rosters that we anticipate working.
PN100
And would you agree that even the seven day roster is meaningless if you're able to change people with two days' notice?---I would disagree that it's meaningless. Again, I would reiterate that based on the information, the best information we have at that time, that is the best roster we can put out with the most time span to provide employees with as much notice as we can.
PN101
What do you see the purpose of the roster as being?---Well, I see a roster as having a number of purposes. Firstly to advise the employee of what the company's expected requirements are for a particular operation and secondly to allow them to fit that in to their own personal circumstances.
PN102
How would you expect someone to fit a roster with seven days' notice in to their personal circumstances when the company can, by your
interpretation, impose a change on them with two days' notice?---I guess the way to answer that is, the nature of our industry hasn't
changed in that we work in a very volatile day of operation environment. I wish it were otherwise, but it isn't, and when
employees - - -
PN103
But that's not an answer to the question, though, is it?---But when employees - - -
PN104
How does an employee meaningfully make plans for their life so that you're giving them the roster at seven days' notice and they make plans to attend an engagement party or, you know, a baptism or some sort of thing like that, they actually reply and say, "Yes, we're coming along." We've got this function, we're really happy and excited about it, and Qantas then changes them with two days' notice, how does that provide a meaningful system for the person who is an employee?---I guess there are two points in response to that. Firstly, where we do try if an individual indicates that they are - or their preference is that they don't work because of certain circumstances, we do search the rosters for other employees that may be able to work and that takes up a significant amount of time of our planners. So they don't just say to an employee, "Bad luck, you have to work," without first having gone through a process to see if there are other options available in terms of either other employees who may be able to step in with the same skill level to undertake a task. The only time when we would go back to an individual and say there really is no option, is after the business has exhausted the other opportunities that may exist for alternative employees, but the other thing, if I may just conclude, is that it is certainly fair to say that our industry - people who join our industry understand that it is a very volatile operation on the day of operation and there is really no way of avoiding that and it would be terrific if it were otherwise, both from a passenger perspective and a business perspective, but that is not the environment that we work in currently.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN105
I put it to you that that's not consistent with the practice of the company. You've indicated that, you know, as a last resort you'll require someone to change. The evidence of Mr Angerame is that he in fact expressed a desire not to work the shift that was subsequently imposed on him, and it was a shift extension, not just a change, because you agree, first of all, that there's a difference between a shift extension and a shift change?---Yes.
PN106
And you were here, you heard the evidence of Mr Angerame. Do you agree that this change to roster was imposed on him?---As I understand it there was an attempt by the planners to look for alternatives. Mr Angerame, as I understand, is a part time leading hand and is on that roster group and we do not have sufficient numbers of part time staff at that leading hand level. It is one of the areas of recruitment that the business is currently undertaking and we have issued a number of notices to the workforce seeking part time employees who express an interest in learning those skills, but my understanding is, and I am advised that the planners did attempt other alternatives, that is, to source other individuals who may be able to cover that period of time.
PN107
Because that's inconsistent with Mr Angerame's statement, that in fact says that he was contacted by the planner and in the phone call was advised of the extension and he told the person that he didn't want to work the additional hours. You're trying to tell me now that actually in that exact circumstance the planner did go round and ask other people as a result of him saying no, but that's not consistent with your statement, is it?---Well, nothing in Mr Angerame's statement indicates that the planners did not make an attempt to seek alternative.
PN108
But you made reference to your circumstance and said that the planners, to your knowledge, sought alternative labour?---That is correct.
PN109
Mr Angerame's evidence, on the record, is that he indicated he did not want to do this and he explained why, but you agree that the company subsequently imposed the change on him?---I believe that to be the case, yes.
PN110
And a full time employee could have done this work, that's correct, isn't it?
---There may have been. I didn't investigate that option. I - - -
PN111
Did you know if the planners investigated that option?---I believe they did, but I don't know specifically who they contacted.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN112
Well, I put it to you that any number of full time employees would have readily taken up the option to work that shift?---I can't say that they would not have, but I don't know of any evidence whatsoever put forward that any one of them was asked and it's you asserting that they were.
PN113
And in relation to the changes that you engage in, the changes certainly that
Mr Angerame experienced were extensions of the number of hours that he was required to work, that's correct, isn't it?---If I understand
you correctly,
Mr Johnson, on that particular day on 12 February, yes, he was asked to work an extension from 1100 hours and the expected time
of conclusion was 12.30. Our records indicated his last activity ceased at 11.53.
PN114
And to the best of your knowledge the changes that Qantas had engaged in since the introduction of IRoster have by and large been extensions of the hours that employees have been required to work, haven't they?---I can't say whether the majority of them were that or whether or not they were changes to the total number of hours worked on a particular day.
PN115
But that would be the same thing, wouldn't it?---I don't think I understand your question.
PN116
So how would you define an extension of hours?---An extension of hours relates to the day of operation on the day of operation seeking to extend an employee's time either before or at the conclusion of the shift.
PN117
They're working more hours?---As an extension, yes.
PN118
And you qualified that and distinguish it against another form of increased hours required of an employee, is that correct?---Sorry, please explain? I don't understand that.
PN119
So you're saying that extension has a particular meaning, I take it, within the terms of the agreement?---On the day of operation an extension as I understand it is defined within the award on the day of operation and that particular clause relates to the work on the day of operation if I understand the award correctly, the EBA correctly.
PN120
And you're seeking to differentiate that from an expansion of hours otherwise provided for by the agreement, is that correct?---No. All the business is trying to do is to cover the operation in a cost effective way within the provisions of the existing EBA.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN121
But you are alluding to, I take it, other extensions or increases in the quantum of hours an employee is required to work, that - - - ?---Subject to clause 28.4.3 I believe we have a capacity to provide shift changes for both full time and part time employees at - with 48 hours or more notice.
PN122
And when you say a shift change, by change do you mean an increase to hours?
---It may be, but may not be.
PN123
And where do you say you have the capacity to increase the number of hours that an employee is required compulsorily to work?---Within the provisions of the existing EBA 6 agreement.
PN124
Whereabouts in the agreement?---Clause - I don't have it in front of me, but to the best of my recollection I think it's clause 28.4.3 - 28.4 - under the Shift Change provisions of the existing EBA.
PN125
So that's the clause that you're relying on, to increase compulsorily a part time employee's hours?---Without having a copy of the agreement in front of me, you're relying on my memory for that award clause, but I believe that to be the right clause number.
PN126
Because I put it to you that the clause that you referred to earlier at 18.5.8, which refers to extension of hours for part time employees by an agreement - - - ?---On the day of operation.
PN127
Well, let me ask the question. That that clause actually covers the rostering for employees in terms of shift changes?---You're putting it to me that that's the position?
PN128
Yes?---I don't agree with that. I don't believe that clause 18.5 works in isolation of the other clauses within the award.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN129
In paragraph 15 you say you advised part time shift workers of changes to shifts and at paragraph 17 you say you request the employees change their shift. Can you explain the difference?---Yes, I can. Under IRoster we issue the roster at seven days. At minus four days to the day of operation we focus on more accurately planning that day's operation based on real time information that we have and once we - and to that extent we, for example, make up the teams based on the numbers and skill level of the individuals. So we make up teams. We allocate teams to pieces of work and we ensure that the flow of the work meets the operational requirements. Between minus four days and minus one day to the operation there continues to be lots of changes happening in the IRoster system. In addition to that we get advised of staff's absence from work on occasions or people that, for any number of reasons, are not available on the day of operation and we re-visit that particular minus four days piece of work at minus one day to the operation and we fine tune it as best we can based on the updated real time information in IRoster based on the information we have from employees as to their availability or non-availability and any updates to things like training or people that acquire additional skills in the workplace and we then tweak those teams to the schedule and so at 1800 hours at minus one day we then hand that work over in the computer into the real time environment that our resource allocators work with on the day of operation. So if you like it's a staged process, your Honour, of getting data that is quite - is the expected operation in a perfect world and as we get more information around operations, aircraft availability, freight work, staff availability, absences and skilling, we tweak that and get the best fit we can to the day of operation so that we hand over into a real time environment but - - -
PN130
My question was actually - I think you strayed a little bit from the question?
---That's okay.
PN131
I've asked you to identify the difference, if you like, between advise and request?
---Well, under - - -
PN132
I'm not asking for a monologue?---Well, under clause 18.5 the award talks and one of the sub clauses of the operation on the day and seeking by agreement to extend part time hours and at minus one day, because they're working in the real time space on the day of operation, they're planning it, we do seek agreement of the part time employee where possible, and most of the time the employees are in a position to agree to those pieces of work. Where we don't get agreement we either seek alternatives or the decision is made based on the operation to pay in accordance with the award the appropriate penalty under the award which would be double time dollars. We have to do that for the day of operation work.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN133
Okay, and you're placing a particular interpretation on the words "on the day". It's the case, isn't it, that you can request a part time employee to extend their shifts prior to the day, you could do that with seven days' notice if you knew someone was going to be sick and you wanted them to cover that person's - - - ?---We could and depending on the level of conversation between the forward planner and the individual, it may be phrased in that way and we do attempt to do that.
PN134
That would have the same effect, would it not, as a change according to your interpretation under clause 28.4.3(c) with more than two days' notice?---I believe that that would apply, yes.
PN135
It has the same effect. If an employee who is advised of a shift change under your interpretation of clause 28.4.3(c) says that they don't agree with the change, what happens?---We would ask them why, what is the circumstance, and we would also seek to find alternatives. So is there another employee with the same skill level that can take on that piece of work, what are the options and the planners do evaluate those options and it really is only if there is no viable option that we would go back and explain to the employee that we need them to work, but I have to reiterate, Mr Johnson, that we do seek alternatives.
PN136
But you maintain as a right the company's capacity to forcibly change an employee's roster with two days' notice under that clause, don't you?---I don't believe there's anything in the existing EBA that prohibits the company from doing that. It simply says that if we do do it, we'll pay a penalty and the penalty will be a payment to the employee, but I'm not aware of anything in the existing instrument that actually prohibits the company from doing it. It isn't always practical to do it because clearly we want to do it with agreement and in consultation with the employees, but there are - - -
PN137
You say that you would be paying more money if you imposed a shift change on an employee with two days' notice?---I can't quote verbatim. I don't have a copy of the EBA in front of me, but I think it refers somewhere in that document to shift changes with less than 48 hours' notice, having a penalty - - -
PN138
Accept changes with more than 48 hours?---Yes, or a - yes. That's what I was referring to.
PN139
With less than 48 hours' notice. You were referring to shift changes, but less than 48 hours - - - ?---If I answered your question correctly you indicated that you questioned me on our ability to seek agreement of people within the 24 hours' notice or not seek agreement.
**** KATHLEEN ROBERTSON XXN MR JOHNSON
PN140
No. My question was actually about your capacity to compulsorily change someone's roster with more than two days' notice. You maintain that the company has a right to compulsorily change someone's roster with two days' notice?---I'm not aware that there's anything in the existing agreement that prohibits that without a penalty being applied.
PN141
Without a penalty being applied?---Yes. If we do it, there's a penalty to be paid.
PN142
And what's the penalty?---I understood it was double time.
PN143
So if you give someone two days' notice of a shift change - - - ?---No. Less than two days' notice.
PN144
Right, that may be where the confusion is arising?---At - we have to give - I'm sorry, maybe I'm getting confused with all the questions, but my understanding is that the existing EBA provides that if we want to change someone's shift we have to give them a minimum of 48 hours' notice.
PN145
THE VICE PRESIDENT: And if it's less than that, then double time is required?---That is my understanding, your Honour.
MR JOHNSON: I have no further questions for Ms Robertson.
<RE-EXAMINATION BY MR OGILVIE [10.52AM]
PN147
MR OGILVIE: I just have one question for Ms Robertson. You were asked a series of questions about Qantas' practices in looking for alternatives before - I'm trying to think of the right word, but enforcing shift changes without agreement. Do you remember that?---Amongst all the questions, yes, I do.
PN148
Can I just show you this document. I hand it up to your Honour. I'll just give you a chance to have a quick look at it. Ms Robertson, what is that document?---This document is a notice to employees at Ramp Services at Melbourne Airport explaining how we work through a process of preparing our rosters and the notice periods. This notice was issued to staff. It was issued to staff following the first time this matter was presented before the Commission. I do forget the exact date but I think it was possibly November-ish or October-ish of 2007 and the company did agree to issue a notice to staff explaining our process on how we will prepare at minus four and minus one day our teaming and establish our operational requirements with staff for that day and this document was issued as a result of that commitment.
**** KATHLEEN ROBERTSON RXN MR OGILVIE
PN149
No further questions, your Honour.
PN150
THE VICE PRESIDENT: Do you wish to tender the document?
MR OGILVIE: Sorry, yes, I seek to tender that document.
EXHIBIT #O2 NOTICE TO EMPLOYEES
PN152
THE VICE PRESIDENT: Anything arising from that, Mr Johnson?
MR JOHNSON: Thank you, your Honour.
<FURTHER CROSS-EXAMINATION BY MR JOHNSON [10.54AM]
PN154
MR JOHNSON: Ms Robertson, I think your evidence had been that regardless of any extent of consultation or shopping around for other employees to perform the required shift changes, ultimately Qantas will change the shift on an employee if they need to, won't they?---If no alternative suitable is found.
PN155
Let's say this document is fairly meaningless. It's maybe a nice people sort of - it might be a satisfying document in terms of HR practices, but it really has no functional meaning when the company can change compulsorily someone's roster, does it?---I disagree with that comment, Mr Johnson. I think that this document is very important to the extent that in a large workforce there are often individuals who don't fully understand the processes and this document was issued following a commitment given by the company at the last time this matter was presented before the Commission in an attempt to better provide an explanation to staff so that staff can understand that at the end of the day we have an operation to meet and we do that having regard to a whole range of circumstances and a whole range of individual's personal needs and that we do try where possible.
PN156
It doesn't change the fundamental position of the company, that they will change your shift if they want to?---If there is no alternative to that, the company does maintain that position and we believe that the provisions under the existing EBA allow us to do that.
Thank you, Ms Robertson.
<THE WITNESS WITHDREW [10.57AM]
PN158
THE VICE PRESIDENT: Mr Johnson?
PN159
MR JOHNSON: Thank you, your Honour. We've had evidence this morning of an employee who is perhaps a nominal example of a wider practice that is engaged in by the company whereby the company nominally requests employees to agree to changes in their roster. If that change is not agreed to by the employee, the company resorts to imposition of that change on the employee. It is that imposition of change with which we take issue and the basis for rejecting that approach by the company is founded in the agreement. Specifically we rely on clause 18.5.8 in relation to part time employees. Clause 18.5.8 reads:
PN160
To satisfy operational commercial requirements on the day part time employees may have their rostered shift hours extended to a maximum of 7.6 hours by agreement, single time rates will apply for all hours up to 7.6 hours per day.
PN161
What we have heard from Ms Robertson is a particular interpretation that the company is taking to the meaning of the words "on the day". The company's approach is that that means that a change to a part time employee's roster whereby there is an extension of the number of hours required of that employee can only be achieved by agreement with that employee on a particular day.
PN162
Our contention is that that clause provides a more fulsome limitation on the company's capacity to change a part time employee's roster. It does that by providing a capacity for the company to approach that employee if they wish to change an employee's roster. We say that the words "on the day" do not mean on a particular day or that a request must be made on the same day as the change occurs, but that it provides a capacity for the company to approach an employee and to put to that employee a proposed change to their roster, which may be two weeks, one week, or five days or three days prior to the change. It could be on the same day. But we say that that clause is a specific provision relating to part time employees which regulates changes to their rosters.
PN163
We say that it has been included by the specific intention of the parties in the part time provisions of the agreement to protect the lives and social aspect of people's lives, that the part time employees, as a particular subset of employees, require to be protected. The minimum hours, and the nature of the part time agreement, specify that minimum weekly hours must be agreed between the employee and employer prior to the commencement of the part time work and that the classification applying to the work must also be agreed. Clause 18.5.4 of the agreement indicates that the terms of the agreement established in 18.5.3 being a minimum may be varied by consent.
PN164
What we say is that that minimum is something which should be regarded as sacrosanct for the purposes of the part time employee and that clause 18.5.8 relates directly to the agreement which is reached between the employee and the employer in relation to the minimum hours. We say that the roster that is agreed between a part time employee and the company must be protected and that 18.5.8 acts to do so.
PN165
The company are seeking to rely on clause 28.4.3 as a basis of changing people's shifts, both part time and full time, with 48 hours' notice. There are two points in relation to the part time employees and if you will bear with me if I break down this case slightly. Part time employees, we say, are entitled to the provisions of 18.5.8 and must agree to any change to their roster unless it is given with more than seven days' notice.
PN166
We say that clause 28.4.3 in particular does not apply to part time employees. We don't contend that the entirety of clause 28 does not apply to part time employees. Merely that the general roster provisions of clause 28.4.3 do not apply to part time employees because there is a specific roster provision provided for shift changes in 18.5.8. We point to the principle of statutory interpretation that where there is a specific provision and a general provision, that the general provision is read down to the extent of any inconsistency with specific provision, and what we say is that because there is a capacity for the employee to agree to a shift change, agree to a shift change under 18.5.8, any compulsorily changed shifts under clause 28.4.3 cannot have effect in relation to the part time employee because of that inconsistency.
PN167
We go further. This issue relates also to full time employees and I note that employees of a company that are affected by disputes, that they have a capacity to bring proceedings in relation to breaches that may occur and I will find the precedent for that. In the Australian Workers' Union v BHP Iron Ore Pty Ltd, this was a matter in the Federal Court. It was a matter of an interlocutory injunction. Gray J determined at paragraph 51, at the bottom of that paragraph:
PN168
Each employee has an interest in ensuring that the employer does not treat fellow employees either with favour or with disfavour. So in a real sense each employee does have an interest in the terms and conditions upon which his or her employer engages other employees.
PN169
And it goes on:
PN170
Each employee has an interest in ensuring -
PN171
and so forth. We say that full time employees are affected by this dispute because they are covered by the same agreement, and in relation to full time employees, we say that clause 28.4.3 in fact reads very differently to the manner in which Qantas are seeking to apply it. We say that clause 28.4.3 says that the shift rosters must specify the commencing and finishing times of ordinary working hours' respective shifts. That's a given. Subparagraph (b) indicates that:
PN172
At least seven days' notice of any change to their shift work rosters employees must be given at least seven days' notice of any change to their shift work rosters, unless the shift work rosters are varied by agreement between Qantas and the majority of employees in the area concerned.
PN173
We say that that's an express provision which, when read in sequence with the following paragraph, indicates that the following paragraph tells us how that agreement is to be in place between the majority of employees in the area concerned and Qantas. Once the agreement is reached for a change to shift work rosters, then (c) applies. If an employee on shift work is required to change his other roster, they have to be given two days' notice of the change. If the required notice is not given, they must be paid for the shift at double time. We say that (c) merely instructs us as to how to enforce (b).
PN174
So what we say is that where shift changes are required that there must be agreement between Qantas and the majority of the employees in the area concerned.
PN175
THE VICE PRESIDENT: Can I take you back to the AWU v BHP case.
PN176
MR JOHNSON: Yes.
PN177
THE VICE PRESIDENT: Was that proposition in paragraph 51 you referred to, I think - - -
PN178
MR JOHNSON: Yes.
PN179
THE VICE PRESIDENT: Was that disturbed by the appeal decision, if it was a successful appeal against this decision?
PN180
MR JOHNSON: Your Honour, to the best of my knowledge it wasn't, but I don't want to intentionally mislead the bench, so I can't answer that question in its entirety. So I'll decline to answer it if that pleases your Honour. I don't want to lead you down a path.
PN181
THE VICE PRESIDENT: Maybe the proposition is self evident as a general proposition and a particular application of facts led to a different conclusion that I wasn't aware that there wasn't a successful appeal against that decision, as I recall it.
PN182
MR JOHNSON: Yes. Your Honour, what we say is that clause 28 of the agreement was clearly framed around the parameters of full time work and I think that the outline of submissions by the company certainly indicate that they agree with that contention as well. Where we differ is in terms of the application of the shift change provisions in 18.5.8 and 28.4.3. If we are incorrect in our interpretation of the agreement and if the Commission decides that clause 28.4.3 is not read down in light of the provisions of clause 18.5.8 we submit in the alternative that the word "change" in clause 28.4.3(c) can only mean a variation to the time at which rostered hours are worked. It cannot mean an increase to the number of hours worked.
PN183
The concept of a change of hours is possibly ambiguous, I accept that. It may be construed as either meaning, when seen in isolation, however when read in the context of the agreement and in particular for part time employees, the specific provisions relating to minimum hours and the nature of clause 18.5, we say that there is no logical way in which the word change can mean an increase to the quantum of hours performed as opposed to a variation of the time at which the same quantum of hours is performed.
PN184
We heard the evidence from Ms Robertson that the variation or change to the practice of rostering engaged in by the company occurred sometime last year and that that is the basis, she sees, of this dispute. We agree and we also contend that we have been disputing the interpretation by Qantas of the agreement since that time and since that change occurred so there is no longstanding practice of the company in terms of what it has been doing.
PN185
What the company has in fact done is to subvert the proper intention of the parties to the agreement as recorded in the agreement by seeking to avoid the obligations that would otherwise exist under clause 18.5.8 and substituting them for part time employees with the provisions of clause 28.4.3(c). We say that that is an inappropriate approach for the company to take and on Ms Robertson's own evidence that led to the payment of single time instead of double time as a consequence.
PN186
Your Honour, we say that the agreement cannot be applied in this manner and we seek a decision from the Commission that the respondent cannot compulsorily increase the part time employees' hours, in the absence of agreement between the employer and the employee, with less than seven days' notice and the respondent cannot compulsorily change a fulltime employee's roster with less than seven days' notice unless there is agreement between Qantas and the majority of employees in the area concerned.
PN187
Your Honour, that concludes my submissions. If there is anything you would like to ask.
PN188
THE VICE PRESIDENT: No, thank you. Mr Ogilvie.
MR OGILVIE: Your Honour, I do intend to be relatively brief in submissions that are made.
EXHIBIT #O3 RESPONDENT'S OUTLINE OF SUBMISSIONS
PN190
MR OGILVIE: I rely on that outline that's been filed and the evidence that's been given quite comprehensively, we say, by Ms Robertson, but it's important to expand on at least a couple of the matters that were raised in submissions, the first of which is the way this dispute has been characterised by the TWU. The second, we say is, what is the history of these clauses and how does Qantas actually apply these provisions both during the life of the current agreement and previously. The third point is why is this only now in issue? We say that these provisions have been largely in place dating back to at least 1996. Why has this become an issue and some of that came out in the evidence of Ms Robertson and I'd like to address that, to more fully address the issues of inconsistency that have been made by - the submissions that have been made by the TWU and some other specific matters that were raised today.
PN191
In relation to the first point, your Honour, characterisation, we say this dispute concerns Qantas' ability to modify the shifts of part time workers and arises from the interaction between two specific clauses of EBA6. One is clause 18.5.8 which deals with extending rostered shift hours of part time employees on the day and the second one is clause 28.4.3 which deals with shiftwork rosters generally both for fulltime and part time employees and changes to shiftwork rosters for employees generally.
PN192
The dispute, at least the initial notification was identified by the TWU as applying to practices at the Melbourne ramp but obviously, your Honour, this agreement has an national application and any decision or orders that may be the outcome of this decision would have impact on the way in which the agreement terms are applied nationally, although it has arisen out of a practice and we say there's a reason why it's been focused on Melbourne, but it does have implications nationally.
PN193
In relation to the way the TWU has characterised this dispute, we say the outline of submissions has moved away from the way in which this matter was first brought before the Commission. They've tendered to alter the way in which it's been characterised and that's been done obviously for a reason, to bolster the interpretation of those two clauses that have been put to your Honour.
PN194
In its original application before the Commission, filed on 9 October 2007, the TWU identified two matters in dispute. The first does not arise in these proceedings and your Honour might recall it dealt with classifications and pay rates for employees in Hobart. The second matter in the application was identified as follows:
PN195
Failure by the company to comply with clause 18.5, part time conditions of employment, and 28.4.3 shiftwork rosters ...(reads)...Transport Workers Union Qantas Airways Limited Enterprise Bargaining Agreement 6.
PN196
We say that's the correct characterisation of the dispute and that's the way it was originally notified by the TWU.
PN197
As I'm instructed, the TWU's position throughout this has always been Qantas can't rely on clause 28.4 of the agreement to change a part time shift employee's roster because that clause doesn't apply to part time employees and clause 18.5.8 is the only way in which a part time employee can have a shift roster changed.
PN198
Your Honour, there was a conference listed, as I understand on 23 October where this matter and a number of other matters were conciliated and was unable to resolve the dispute. On 30 January the TWU wrote to your Honour's associate and sought the matter be relisted for conciliation and directions. The matter was relisted on 12 February 2008, the matter remained unresolved and your Honour issued directions for the parties to file and serve an outline of submissions.
PN199
In the outline that has been filed and tendered in these proceedings on 22 February the characterisation of the dispute changed and it occurs in two parts. The first is at paragraph 3 of the submissions that were made:
PN200
As this matter relates to a practice Qantas has engaged in at Melbourne ramp whereby part time shift workers are having their rostered hours changed with increases to the quantum hours worked in any particular week above those that they have been contracted to perform.
PN201
We say that's moving away from the way it was originally characterised as an interaction between the part time provisions of the agreement and the shiftwork provisions of the agreement. I'll address the issue about increases to the quantum of hours worked and the hours that are contracted to perform in the submissions.
PN202
In addition, at paragraph 7, the TWU identified the dispute as:
PN203
A dispute between the parties can be characterised as whether Qantas can compulsorily increase a part time employee's ordinary hours in the absence of agreement between the employer and the employee with less than seven days' notice and (2) -
PN204
this is important:
PN205
Where the fulltime employees can have their roster changed with less than seven days' notice other than by agreement of a majority of employees in the area concerned.
PN206
Paragraph 8 says:
PN207
This characterisation requires an assessment by the Commission for the interaction of clauses 18.5.8 and 28.4.3.
PN208
Although we say 7(1) again talks about increasing the quantum of hours and this talks about compulsorily increasing those hours, which wasn't originally in dispute, we say that's probably within the scope of what was originally brought to the Commission in the dispute that was originally tried to be resolved.
PN209
In my submission, however, item 2 is not a matter that has previously arisen in this dispute. At no time have the parties turned their minds to roster changes for fulltime shift workers. It has been put somehow that this dispute has expanded to a dispute about the way in which 28.4.3(b) and (c) of themselves operate and how they apply to fulltime shift workers.
PN210
We say even if there is a legitimate concern from the TWU about 28.4.3(b) and (c) and how it applies to fulltime shift workers, that matter hasn't been progressed through the disputes procedure and hasn't been the subject of conciliation. The issue of full timers was never addressed and never discussed.
PN211
We are happy to address and make submissions on how those clauses are applied and how they have effect in respect of part time shift workers because that arises out of the interaction of the two clauses but in relation to at least the remedy sought, and your Honour, you'll see from the last paragraph of the TWU submissions that there's an order or a direction that - the way that clause operates at least in relation to fulltime shift workers, we say there's no jurisdiction to do that, even if the TWU is right on its construction of that agreement. That issue has not been progressed in the disputes procedure. Your Honour, as I said, we submit we're happy to deal with what we say is the correct position and the quite clear position on how clause 28.4.3(b) and (c) work in the context of the process of modifying part time shift workers' hours.
PN212
THE VICE PRESIDENT: I take it you don't agree with the second remedy.
PN213
MR OGILVIE: No, your Honour. We clearly say that the interpretation of those clauses - I think it's been put that paragraph (c) instructs on how paragraph (b) ought to be applied. We say there's no basis for that interpretation of those clauses in the agreement. Ms Robertson's evidence has been that the practice at least of EBA6 and prior to EBA6 and how those provisions haven't been applied is inconsistent with that interpretation. Indeed, without having evidence, your Honour, but I'll get to the history of the provisions, that clause is an industry clause. It's word for word directly out of the underlying industry award. You might even note, your Honour, that the word "award" was incorrectly copied across into the agreement as well, so it's verbatim of the industry award clause.
PN214
In my submission, and for what it's worth, the examination we've done of previous decisions of this Commission about interpreting that clause and this award, that issue has never come up before. We say there's a reason why it's come up now and it's an attempt by the TWU to provide extra support to the submission about the operation of clause 8.5.8, rather than any genuine dispute about the way that Qantas rosters shifts and changes shifts in accordance with that clause. If there is a genuine dispute, it hasn't come up before and it's the first time that this is the result. We say it's really about trying to support an interpretation which is just not correct of how the part time shiftwork provisions apply.
PN215
THE VICE PRESIDENT: Isn't the dispute more about the interpretation of the provisions and the dispute about part time employees has led to a consideration of this clause and that consideration has given rise to different interpretations? It's really a different interpretation of the clause which has, as the union would say, extended the nature of the dispute to questions of interpretation of that provision, not so much a dispute about practices in relation to fulltime employees as such.
PN216
MR OGILVIE: Your Honour, that is probably the way to characterise how it has arisen. What we say is that this further consideration as to how they say that what clause 28.4.3(b) and (c) actually mean and how they ought to apply in the agreement, is not the practice that was adopted prior to EBA6 and not the practice that the parties had in their minds when they negotiated EBA6 and put those clauses in place.
PN217
The TWU has moved away from the way that that clause is applied and has been understood by the parties to mean up until this point when there was a dispute about the part time shift workers and somehow there's a new interpretation of it. If there is a broader dispute about Qantas' application of that clause in relation to fulltime employees, that hasn't been progressed. We say that it's just been developed as an argument in support of the part time shift provisions and we'd need to be very careful about adopting a different view of that clause than applies more generally..
PN218
The point I suppose I was trying to raise is the jurisdiction issue about the orders that are being sought in relation to fulltime employees. It's not a matter that's been progressed, but obviously any decision that relates to the interpretation of that clause as it applies to part timers would equally have effect to full timers.
PN219
Your Honour, I just want to address briefly, just so we understand the history of these clauses and where they come from, this a relatively new dispute. We say Ms Robertson's evidence is that came up in sort of the second half, I think, of 2007 and I don't think that's challenged. The first proceedings before your Honour were October 2007 and all of these clauses in their substantive form have been around and operative and applying to Qantas at the ramp in Melbourne since at least 1996 when the part time provisions first arose.
PN220
The shift provisions in their current form, your Honour, at least have been in place - in their identical word for word current form have been in place at least since the simplification of the award and I am unable to make submissions on how they date back before that for the predecessor award but at least those clauses have been in place for that long.
The specific part time provisions in clause 18 which are in dispute in EBA6 originated from appendix 4 of EBA3 which operated from July 1996. They were an agreed position that formed an appendix to the Qantas EBA. Your Honour, might be aware of the background to the Qantas agreements. EBA3 was an almost global agreement with almost all of the unions covering its operations, had separate appendices in relation to each of the various areas and each of the various unions. I've got a copy of EBA3 - or extracts, sorry, your Honour, from EBA3.
EXHIBIT #O4 EXTRACTS FROM EBA3
PN222
MR OGILVIE: There's a covering page which is just sort of the internal Qantas description of it but following that there's the certification
from, at the time
Acton DP on 4 December 1996, explains the background to the agreement. There are provisions at the front that apply to all of the
work areas. Of particular interest is clause 7 which is on - it's got page 3 down the bottom and it's about halfway through, and
that says:
PN223
Part time work: subject to the terms set out in the agreement in appendices 1 to 9 part time employment may be expanded to meet the operational requirements of the company.
PN224
We say that was really a sort of starting point in the use of part time employment to meet operational requirements, and because of the nature of the work, at least in ramp operations, how important that is to the business.
PN225
I haven't put all the appendices in but the relevant appendix is a couple of pages following. It has appendix 4 up the top right-hand corner and page number 2 down the bottom. There's some background to the use of different types of employment there and over the page there is a Qantas Transport Workers Union of Australia heads of agreement which sets out the principles, the mechanism for implementation of part time employment and then over the page again there's a heading that says Terms and Conditions:
PN226
Hours of duty: there will be a minimum engagement of 20 hours per week with a minimum daily engagement of four consecutive hours will apply. The number of rostered hours will not exceed 20 hours per week. Average hours over 12 months shall be between 20 and 30 per week.
PN227
Then there's provisions there that provide that:
PN228
Part time employees shall not exceed an aggregate of 1560 hours in the first year, 1410 hours in any successive year and if the hours worked are exceeded the position converts to fulltime.
PN229
Your Honour would be aware of at least that clause being subject of significant proceedings in the Commission and again now before your Honour in relation to the conversion provisions but that's where they originally derived from.
PN230
That's EBA3, if I can refer to it, your Honour. You're probably also aware that the way in which Qantas, up until a few years ago, undertook the process of enterprise bargaining was to, rather than produce a new agreement but was to have a fourth agreement and a fifth agreement which incorporated the terms of the previous agreements with some changes and operated together.
The next agreement in place was the Transport Workers Union Qantas Airways Limited so it was a specific TWU agreement, EBA4. The matter of part time employees wasn't addressed in EBA4. I can hand a copy of that up. It's only quite a short document.
EXHIBIT #O5 EBA4 TRANSPORT WORKERS UNION QANTAS AIRWAYS LIMITED
PN232
MR OGILVIE: The next agreement we refer to is EBA5 again Transport Workers Union Qantas Airways Limited Enterprise Bargaining Agreement 5 again incorporated EBA3 and by reference incorporates the part time provisions from appendix 4 of EBA3. There were two amendments, being additions to those provisions in EBA4 and they really dealt with the ability to transfer part time employees to fulltime relief employment so not relevant for the purposes of these proceedings.
PN233
Importantly, the agreement was read in conjunction with the underlying award at the time which was previously known as the Transport Workers Airlines Award 1988 and following simplification became known as the Airline Operations Transport Workers Award 1998. I'll probably, just for completeness, your Honour, hand a copy of that up.
PN234
THE VICE PRESIDENT: I'll mark that - that's the award.
PN235
MR OGILVIE: That's the award, your Honour. Relevantly, for the award, your Honour, up until the point, well, at least EBA5 was in operation, the agreements were read in conjunction with the award. The award provided a definition of a part time employee as:
PN236
An employee who works less than fulltime hours of 38 per week and has a regular pattern of hours at work and receives on a pro rata basis pay and award conditions to those of fulltime employees who do the same work in the classification concerned.
PN237
That definition of part time employee doesn't appear in the appendix to EBA3 and consequently wasn't directly part of the agreement provisions but we say it's not inconsistent with the agreement provisions and provides a background and understanding of what a part time employee is for the purpose of providing those agreement provisions.
PN238
The next significant point was the certification of EBA6, which is the current agreement and from which the clauses we are referring to - EBA6 operated from 13 October 2006 and again, importantly, involved the consolidation of the award provisions and previous agreement provisions. That consolidation process saw almost all of the part time hours of duty, clauses from appendix 4 of EBA3 included, in addition with some other conditions for part time employees. We would submit that appendix 4 of EBA3, those provisions are reflected in clauses - now which is clause 18.5.1, 18.5.2, 18.5.8 and 18.5.9 of EBA6. Those clauses are now part of EBA6 and apply to part time employees covered by the various agreements since 1996. In my submission, the history of those provisions means they are largely unchanged in the way they are worded since at least 1996.
PN239
The clauses have and have been intended to set out some conditions that apply to part time employees. We say they're not exhaustive, the conditions that apply to part time employees, and they are to be read in conjunction with other conditions that apply to all employees so other conditions that apply to fulltime, casuals, temporary employees and shiftwork employees. I'll get to the submission before, we say the way the agreement is to be applied is that those part time provisions are specific part time provisions and there are some specific part time provisions that relate to shiftwork but the shiftwork provisions themselves, which are part of the agreement and were included in the agreement on consolidation in EBA6 need to be read in conjunction with it too.
PN240
To the extent that there is any inconsistency. Mr Johnson is right that it might be right that there are specific part time provisions that apply and that the general shiftwork provisions ought to be read down. We say, although that might be correct, there is no inconsistency between the two sets of provisions. They can be read together and in particular in this circumstances there's no basis on which to say that the two sets of clauses can't be read and operated together and I'll get to that.
PN241
Just for completeness, your Honour, I know I've dealt with this a little bit, but the shift provisions which is the other half of this equation, they were part of the award and continue to be part of the award until the consolidation exercise in EBA6 and the way in which shifts were worked, both the fulltime employees and part time employees were derived from the award up until the operation of EBA6. Your Honour will notice, the shiftwork provisions that is now clause 28.4.3 is derived from what is now clause 27.4.3 of the award and we submit it's word for word repetition, including the repetition of the word "award" rather than agreement in clause 28.4.3.
PN242
I suppose, your Honour, if we come to what we say is the dispute and what we say is the way the agreement is to be applied and ought to be interpreted, we think it's important to look at what happens in practice and important to look what has the parties' understanding of those clauses been, not just through EBA6 but through the previous provisions which we say are the same and were in the parties' minds and were in their intention when they made EBA6 by incorporating those provisions into EBA6. This is the way they had always done it and we say there's no significant change between the previous arrangements and what's in EBA6 so the practices applied both in EBA6 and before EBA6 are relevant to interpreting the parties' intentions in making that agreement.
PN243
What happens in practice is set out in detail in Ms Robertson's evidence and what she has again gone through in oral evidence today, however, in summary, using I roster, rosters for ramp services employees are generated up to a month in advance. This has occurred since 18 February - Ms Robertson's evidence says look, in terms of publishing rosters at least seven days' notice is given and it builds up from that, up to four weeks' notice.
PN244
Where a change is needed, in our submission Qantas effects those roster changes as follows: if a part time or a fulltime shift worker is notified of a change to their shift two or more days prior to the shift, that can be done in accordance with clause 28.4.3(c) and they are paid single time rates of pay for that work. If a part time or fulltime shift worker is notified of a change to the shift less than two days prior to the shift, they are required to be paid double time rates of pay and we say that arises from the operation of clause 29.2.2 which is the overtime provisions of the agreement.
PN245
If on the day of the shift Qantas seeks to extend a part time employee's shift hours, so an extension, they may have originally been rostered to do four hours and it may be extended to five hours up to 7.6 hours, that extension only occurs with the employee's agreement and single time rates of pay apply in accordance with clause 18.5.8. As a proviso to that is that unless overtime rates would have applied by virtue of clause 18.5.9 because more than 7.6 hours in a day or more than 10 days in a fortnight are worked.
PN246
The key, your Honour, is to look at what the intention of clause 18.5.8 is. We say that is not a clause that is addressed to dealing with a prescription for the way in which a part time shift worker's hours are changed or extended. It is a clause that is directed at providing specific circumstances for part time employees to allow a shift to be extended up to 7.6 hours without the requirement to pay overtime rates of pay. For example, an employee may be originally rostered to work from 6 am to 11 am, however, the ordinary operational needs on the day the planners may ask the employee to extend his shift from 6 am to 1.30 pm. This can only be done by agreement.
PN247
Then, your Honour, we say where collective roster changes are implemented for shift workers, an example given by Ms Robertson is that example, for roster changes that affect the pattern of rosters worked or that involve significant changes to rosters worked by groups of employees, say what's referred to as the change of season, either seven days' notice is given or agreement between Qantas and the majority of employees in the area concerned is obtained and that's done in accordance with clause 28.4.3(b). We say that these longstanding rostering and shift variation procedures are in compliance with clause 18.5.8 and 28.4.3 specifically and with EBA6 generally.
PN248
The question then becomes, if Qantas has been doing this for so long, why has this dispute arisen? Why does it come up in September, October last year? In Qantas' submission, we say this is really a dispute about a rate of pay for that work and not about the ability to actually make those changes. Ms Robertson's evidence is that in approximately May a new I roster system was implemented for the rostering of ramp services at Melbourne airport and this is not a system that's across all ports but was introduced first into Melbourne. I think that's correct. Sorry, May '07.
PN249
Using I roster, rosters for ramp services employees were then able to be generated up to a month in advance. I think there were some questions put by Mr Johnson about the need for data being the same and the data available being the same. The distinction that we make is that yes, the need for that data and what was required in order to set rosters has always been the same. What I roster has allowed the company to do is rather than being forced to make the decision on the day, they were able to predict that and were able to use that data, process that data to make roster changes to meet requirements much earlier and by making them much earlier, they were able to give earlier notice to employees about that change and because the earlier notice to employees to make that change is able to be given, the requirements under the agreement to provide overtime doesn't - to pay at overtime rates of pay doesn't arise.
PN250
We say the introduction of I roster has not changed the way that Qantas applies the EBA6 provisions or affects shift changes for part time employees. It enables the interpretation of the agreement to remain the same and the way the agreement is applied remains the same. The introduction of the system of I roster has just enabled Qantas to be more efficient in producing that information and providing more notice to employees and has the effect of meaning that the penalty that would normally apply by changing rosters with less than two days doesn't apply. The overtime penalty doesn't apply and that's what has generated this dispute is that the reason has become - it's not the fact that the employees have been directed to do the work, our submission is that the issue is that the access to the overtime payment has been reduced because Qantas is able to give more notice of those roster changes.
PN251
The TWU's position, I think, in simple terms is that somehow clauses 18.5.3, 18.5.4 and 18.5.5 provide for a fixed number of hours per week to be worked by employees and those fixed number of hours can only be varied by agreement and importantly, it's put that 18.5.8 provides an express provision in relation to all roster changes for part time employees and any change must be agreed for part time employees. General provisions for changes for shift workers in clauses 28.4.3(b) and (c) are in conflict. The submission has been made that these clauses ought to be read down as not applying to part time employees at all or not apply to the extent of what's perceived to be an inconsistency with clause 18.5.8. In the alternative, it's submitted that if clause 28.4.3 does apply to part time shift workers, the effect of that clause is that Qantas must give seven days' notice of any change to work rosters.
PN252
Our response to that is that in focusing on 18.5.8 the TWU submissions have ignored the general effect in the other provisions of
18.5 and the purpose of
clause 18.5 and any interpretation of that clause needs to be read in the context of that specific clause and the agreement as a
whole. We say the effect of 18.5 generally is to set minimum hours for part time employees to provide a minimum benchmark for part
time employees and that interpretation is supported by 18.5.6 that provides that if employees are not rostered the agreed minimum
weekly hours, they are to be paid for them. It protects part time employees by providing a guaranteed minimum income if Qantas is
unable to satisfy their weekly hours. The effect of clause 18.5 is not to set a fixed weekly hours, but to set a fixed minimum weekly
hours.
PN253
Clause 18.5.8 needs to be read as a whole. It allows for the extension of part time employees' shifts to satisfy operational and commercial requirements on the day of their shift with the employees' agreement up to a maximum of 7.6 hours. As provided for in that clause single times rates of pay apply for such shift extensions and overtime will only apply if more than 7.6 hours are worked in a day or more than 10 hours are worked in a fortnight. That comes from clause 18.5.9.
PN254
Apart from clause 18.5.8, which we say only deals with a limited situation, clause 18.5 generally does not otherwise deal with the setting of shiftwork, the arranging and varying of shiftwork rosters. That work is done by clause 28.4 generally. Although it contemplates extending rostered shift hours, it doesn't deal with amending the roster and related employment conditions. It doesn't deal with the types of shifts. It doesn't deal with no more than one shift per day. It doesn't deal with shiftwork rosters, setting rosters, starting and finishing times. It doesn't deal with shift loadings. It doesn't deal with continuous shifts, other than the examples I took before. It doesn't deal with the requirement to work overtime. It deals with the payment for working overtime but doesn't deal with the requirement to work overtime. It doesn't deal with Sunday work, rest breaks and meal breaks. These employment conditions are contained in other parts of EBA6 and these employment conditions are contained in clause 28. We say the rostering of shift workers for fulltime and part time employees is primarily dealt with in part 5 of EBA6.
PN255
In our submission, nothing in clause 28.4.3 purports to limit its application to
fulltime shift workers and the clause can be readily applied to both fulltime and part time shift workers as it contains certain
requirements for shiftwork rosters. It contains, as has been pointed out by Mr Johnson, shiftwork rosters must specify commencing
and finishing hours, employees must be given seven days' notice of any change to their shiftwork rosters unless the shiftwork rosters
are varied by agreement between Qantas and the majority of employees and if any employee on shiftwork is required to change his or
her roster, they must be given at least
two days' notice of that change. If the required notice is not given the employee must be paid for the shift worked at double time
and that's a payment provision rather than a provision dealing with whether or not the change can or can't be made. Then each shift
is paid at the applicable rate on the day on which the major portion of the shift is worked.
PN256
We say subclauses (b) and (c) of 28.4.3 both deal with Qantas' ability to change shiftwork rosters, however, they apply in different circumstances. Subclause 28.4.3 applies where Qantas is introducing broad changes to groups of employees generally, collectively, whereas 28.4.3(c) applies where Qantas needs to change the shift or alter the shift or extend the hours of the shift of an individual employee. Just on that point, there was a submission made by Mr Johnson that as an alternative submission the word "change" should be read narrowly and shouldn't be read as allowing for an increase, or I suppose conversely, as a decrease in a part time worker's hours. We submit there's nothing in the agreement to support such a narrow reading of that word. In fact, the agreement itself contemplates additional hours and extension of hours being worked.
PN257
For example, your Honour, 29.2.2 deals with overtime. It's all time worked in excess of or outside ordinary hours or on a shift other than a rostered shift must be paid for at the rate of double time. Another example, of course, is 29.4 which deals with recall, if an employee is recalled to work overtime after leaving Qantas' business premises. We say, in the context of those provisions, there's nothing in that clause that should be said that the word "change" can only be a shift in a fixed number of hours and that the word "change" should be read in its normal context involving any sorts of change, subject to the other provisions of the agreement.
PN258
On that basis we say there's no inconsistency between the operation of clause 18.5.8 and the clauses in 28.4.3. As we have set out in the outline, your Honour, the task of interpreting the agreement is to objectively determine the intention of the parties from their words, considered in the light of the surrounding circumstances. It shouldn't be interpreted narrowly ..... the meaning intended by the framers, bearing in mind they're likely to be of a practical bent of mind and they may well have been concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry.
PN259
The provisions of the agreement should be read and interpreted in accordance with their context. It is permissible, and the submissions I have made earlier, to have regard to the history of the relevant provisions to ascertain the true intent and meaning. We say adopting this approach clauses 18.5.8 and 28.4.3 can and do operate harmoniously. There is no inconsistency or requirement to read down the shiftwork provisions not applying in certain circumstances.
PN260
Clause 18.5.8 allows for an extension of part time employees' shifts to satisfy operational and commercial requirements on the day with the employee's agreement up to a maximum of 7.6 hours. Clause 28.4.3(b) applies where Qantas is introducing changes to rosters generally and allows Qantas to make a change upon seven days' notice or with the agreement of the majority of the employees concerned. 28.4.3(c) applies where Qantas need to change the shift of an individual employee and allows Qantas to make such a change upon two days' notice or where two days' notice is not given, overtime rates can be paid. We say 18.5.8 can't be read - unless you read its entirety and in the context of 18.5 generally. It only applies where there's an extension of rostered shift hours on the day of the shift to satisfy operational or commercial requirements. It shouldn't be read as providing the only circumstances in which a rostered shift can be changed for part time shift workers.
PN261
We agree with the submission I think that's made by the TWU that absent agreement from the relevant employee on the day, no extension of rostered shift hours is permissible on the day to satisfy operational requirements. However, that's not to say that the normal roster rule otherwise apply Clause 18, we say, is not an express provision relating to rosters generally, it applies to limited circumstances. The agreement made under 18.5.3 is not about rosters, it's about minimum weekly hours.
PN262
Your Honour, just on that point, I'm not sure if it was pressed today but in the submissions that were made - at least the written submissions somehow asserted that the operation of clauses 18.5.1, indeed 18.5.3 somehow set a fixed hours or contracted hours to be worked by part time shift workers. We say that's an incorrect application of the agreement and not a position that's consistent with the actual terms of those clauses. It's put in the written submissions at least that the TWU is increasing the hours of part time shift workers above those that they have been contracted to perform. We say under EBA6 there's no expressed or implied restriction on the ability of Qantas to direct part time employees to work different or additional hours per week, provided that it complies with the rest of the provisions of the agreement relating to minimum and maximum hours and shift times.
PN263
We say the restrictions are a minimum weekly engagement of 20 hours per week or payment for the agreed minimum if those weekly hours aren't given and a minimum daily engagement of four hours per day, which is clause 18.5.1. There is a maximum number of rostered hours of 30 per week, which is clause 18.5.1, and an average hours worked over 12 months of between 20 and 30 per week and the aggregate annual hours being no more than 1560 in the first year. Those provisions lead to conversion if the aggregate hours exceed those limits.
PN264
Qantas must agree in writing on the employee's minimum number of weekly hours in their classification and this agreement may only be varied by consent and in writing and we say that's consistent with the contract and I think an example of the contract used for part time employees is attached to Ms Robertson's statement. That contract talks about Mr Angerame being employed for a variable shift roster based on a normal week of 20 hours.
PN265
Importantly, we say that it needs to be read in context with clause 18.5.1 which provides that part time employees may be rostered
up to 30 hours per week so there's no cap or ceiling - and I think it's been asserted that you agree on your minimum hours and it
somehow fixes the hours per week that can be worked unless there's agreement otherwise. We say the agreement which is the bargain
reached between the parties allows Qantas to roster part time employees up to
30 hours.
PN266
I think one of the points that was put is that the other provisions of clause 28.3, which are shiftwork provisions, in the written submissions at least says they refer specifically to fulltime employees and we agree that the way those clauses are written, they contemplate fulltime hours of work 38 hours per week worked rather than part time hours. I think that's the start of 28.4.
PN267
Your Honour, we say that that's not enough to support an interpretation that those shiftwork provisions on the whole can't be applied to part time shift workers. Your Honour, remember the earlier submission was made that these clauses came originally from the award and are still in the award. The award contains a definition that says a part time employee is one that works less than 38 hours per week and is entitled to pro rata benefits of the agreement as set out in other provisions of the agreement. So that clause, which talks about the shift workers and the hours for fulltime employees, needs to be read in context with the other definition of part time employees which contemplates part timers operating on a pro rata basis.
PN268
The other shiftwork provisions clearly have to apply to part time shift workers. There's no other provision for the setting of rosters, the starting and finishing times. The overtime to be paid for part time shift workers needs to come from clause 28 as well. We say that they can be read together, they are intended to be read together. Yes, if there is an inconsistency between the specific part time provisions which have been incorporated in the agreement and the shift working provisions, then there may be a basis on which to read down some of the shiftwork provisions but we say there isn't any inconsistency there for them to be read down.
PN269
The only other matters, your Honour, I just wanted to come to, I think in - I'm not clear on the relevance on it, there were some questions asked of Ms Robertson about who prepared the outline of submissions filed on behalf of the company and who prepared her witness statement. I think she was pretty clear on evidence about her preparing the witness statement and her role in preparing that witness statement in conjunction with advisers. We say that the fact that matters and paragraphs that appear in a witness statement come through into the outline of submissions is entirely unremarkable. The evidence of Ms Robertson is the position of the company, a directive of the company and that's the outline and the basis on which the company applies those clauses. The fact that someone other than her has included those clauses directly in the outline is unremarkable and not unusual I think in these types of proceedings and I'm not sure if anything can be made of that.
PN270
Your Honour, in conclusion we say that there's no basis for the making of the directions or the order that's sought by the TWU in this case. In particular we say there's no jurisdictional basis for the making of the second order but to the extent that the first order comes within the scope of the dispute between the parties, we say such an order or direction wouldn't be consistent with the terms of the agreement and in exercising your Honour's discretion in resolving this dispute and issuing a decision and making a direction or an order we say that's a significant factor that needs to be taken into account, that what is being sought by the TWU is inconsistent with the terms of the bargain agreed between the parties which is reflected in EBA6.
PN271
We further say, even if there is jurisdiction to make the orders sought, that the second order sought in relation to the fulltime employees, there's no basis on which to interpret the agreement in that way and the broader ranging consequences of such an interpretation haven't even been considered or discussed by the parties. We say it's inconsistent again with the terms of the agreement, it's inconsistent with the way this agreement is applied both to Qantas in the life of EBA6 and Qantas, when it was awarded the provisions prior to EBA6, and we say the position in the industry generally.
PN272
On that basis, your Honour, any decision that would issue, we're not probably clear on the terms of that, but we say that any decision should support the practice that's been adopted by the company in rostering, setting and paying the part time shift workers. I suppose the best summary of that is document A2 which is an exhibit that was tendered as part of Ms Robertson's evidence. The primary determination we're seeking is that the directions and orders sought by the TWU are not made in these circumstances. If your Honour pleases.
PN273
THE VICE PRESIDENT: Mr Johnson.
PN274
MR JOHNSON: Your Honour, I have several points to respond to, the first of which is a point raised in the submissions of the respondent regarding an assertion that the TWU is seeking to imply terms into the agreement. The TWU is doing no such thing. The paragraphs of the respondent's outline, paragraphs 33 and 34 where they rely on a precedent regarding the proper approach relating to the implication of terms into industrial agreements, and in paragraph 34 the respondent asserts a term that limits the application of clause 28.4.3 to fulltime shift workers should not be implied. We're not saying that it's necessary to imply a term into the agreement because we say that there is an express term contained in the agreement.
PN275
THE VICE PRESIDENT: You put it as a matter of construction of the agreement rather than the need to imply terms.
PN276
MR JOHNSON: That's our submission, your Honour. That's the first point that I wish to respond to. In relation to the issue of jurisdiction raised in relation to the second point of remedy sought by the union, we say that the jurisdiction certainly does exist for the Commission to make such orders as are sought. We say that on the basis that industrial disputes, of their nature, do change throughout the course of the proceeding and that is well founded in the case law that a party is not limited to the notification that was originally made in a dispute but that it is subject to the course of proceedings. This did go to a Full Bench of the Commission and I don't have the reference handy to me, but I believe it was one of the Metals cases that went to a Full Bench.
PN277
Needless to say, we say that the characterisation of the dispute ought be given a wide scope by the Commission and we rely on the decision of Lacy SDP in MUA v Plant Services. I don't have the citation at hand but it's a well known decision, and also in the decision of the Full Bench in the Big W matter where the characterisation of disputes ought properly be given sufficient breadth in order to encompass the issues in dispute between the parties.
PN278
We say that it is in fact Qantas' approach that has led to the consideration of clause 28.4.3 because it is on that clause which they rely in order to compulsorily change the rosters of part time employees. In the absence of Qantas' reliance on that clause, the submissions made by the company may be understandable. However, when a clause is front and centre of a dispute, it is quite open for the union and for affected employees, not limited by a category, to raise concerns about the company's approach to the interpretation of that clause and that is exactly what we have done in including fulltime employees within the scope of this dispute because it certainly does affect their interests and I referred you earlier to a decision which probably enunciates a well known principle that employees who are affected by the action of the company in relation to other employees have a right to raise concerns over those actions.
PN279
THE VICE PRESIDENT: I can understand that the dispute is really about the rostering practices for the part time employees and whether practices which have changed in recent times are consistent with the terms of relevant instruments in general terms, but there is no dispute in practice in relation to rostering of fulltime employees, is there?
PN280
MR JOHNSON: We would say it is open to the Commission to characterise this dispute as inclusive of that issue because it is the practice that is engaged by the company. We have notified this dispute and we say that it does fall within the scope or the parameters of this dispute. Certainly it is the experience that the company does change fulltime employees' rosters with less than seven days' notice and what we are submitting is that that is an inappropriate application of clause 28.3.4.
PN281
In relation to the contention by the company that there is no inconsistency between clauses 18.5.8 and 28.4.3, we dispute that contention and say that there is a direct and fundamental inconsistency between the clauses that means that they are incapable of operating together or indeed operating harmoniously. One clause, 18.5.8, requires the agreement of the employee in order for that change to occur. The other clause, 28.4.3(c) allows the company to compulsorily roster an employee. That's a fundamental difference that irreconcilable and directly inconsistent. Only one clause can operate and we say that the specific must override the general in that sense.
PN282
We say that it would be possible for the company to extend by agreement under clause 18.5.8 an employee's hours up to 7.6 hours at single time. It would equally be possible for the company to extend by single time by compulsion under clause 28.4.3(c) on the company's approach, which we dispute, the hours that an employee is required to work in a particular day. The only difference is whether or not the agreement of the employee is required and we say that that's an irreconcilable difference between the clauses.
PN283
The company have submitted that this dispute is about the rate of pay and not rosters. We disagree with this contention and note
that there's no evidence before the Commission that the dispute being agitated by the TWU is about overtime payments or the rate
of pay. The only evidence that is before the Commission and the contentions by the TWU relate to the rostering of employees and
the right of those employees to rely on rosters for the purposes of planning their lives and engaging in social activities and indeed,
fulfilling their family responsibilities.
We note on that point that one of the principal objects of the Act is to encourage compliance with the family responsibilities of
employees and that should be kept in mind by the Commission when examining this issue of rosters which we say we're relying on and
it's not about the issue of overtime.
PN284
The company have submitted that the effect of clause 18.5 is to set minimum hours for employees, not to set fixed weekly hours and that clause 18.5.8 must be read as a whole. We accept that 18.5.8 deals with a limited situation but that situation, on our submission, is changes to rosters for part time employees. We say that clause 18.5.8 instructs us on how the minimum hours and maximum hours are to be applied in relation to part time employees in order for them to have a sense of some certainty in relation to their roster patterns.
PN285
The submissions by the respondent in relation to a narrow construction of the word "change" in clause 28.4.3, we disagree with their contention and say that the word "change" in our alternative submission ought properly be narrowly construed because the other clauses that were referred to by the respondent all require the agreement of the employee. We submit that it is a proper approach for the Commission, if it adopted that path, to approach the word "change" with a narrow approach because it does impact the way in which this clause would operate in relation to the rostering practices of the company and the way it impacts the lives of these employees.
PN286
At the risk of appearing repetitive, in relation to clause 28.4.3(b) and (c) and their interaction, the company made a point of seeking to qualify subparagraph (b) as relating to collective change versus paragraph (c) which they say relates to individual changes to rosters. What we submit is that if seven days' notice is provided to the employees then (c) doesn't have operation. However, if under paragraph (b) the majority of employees agree to a change, individuals must then, under paragraph (c) be given two days' notice. We maintain our submission that paragraph (c) is instructive of (b) and when reading legislation or statute it is a consequential sort of reading of provisions - sequential, rather, reading of provisions that gives you instruction as to how paragraphs are read and it is well known that preceding paragraphs are qualified by the paragraphs that follow thereafter.
PN287
The final point that I wish to respond to is in relation to clause 28 and the contention by the respondent that it covers part time employees. We don't dispute that clause 28 has application to part time employees. The problem we have is with the inconsistent provisions of clause 18.5.8 and clause 28.4.3. We submit that clause 28.4.3 must be read with regard to the history which is in reference to fulltime employment, not part time employment, therefore, caution must be exercised in relation to seeking to interpret clause 28.4.3 as applying to part time employees in its entirety.
PN288
I have no further submissions, your Honour.
PN289
THE VICE PRESIDENT: I thank the parties for their submissions. I will reserve my decision and the Commission will now adjourn.
<ADJOURNED INDEFINITELY [12.14PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #J1 OUTLINE OF APPLICANT SUBMISSIONS DATED 22/02/2008 PN10
VINCENT ANGERAME, SWORN PN12
EXAMINATION-IN-CHIEF BY MR JOHNSON PN12
EXHIBIT #J2 STATEMENT OF VINCENT ANGERAME DATED 21/02/2008 PN18
CROSS-EXAMINATION BY MR OGILVIE PN19
RE-EXAMINATION BY MR JOHNSON PN37
THE WITNESS WITHDREW PN41
KATHLEEN ROBERTSON, SWORN PN44
EXAMINATION-IN-CHIEF BY MR OGILVIE PN44
EXHIBIT #O1 STATEMENT OF KATHLEEN ROBERTSON PN49
CROSS-EXAMINATION BY MR JOHNSON PN55
RE-EXAMINATION BY MR OGILVIE PN146
EXHIBIT #O2 NOTICE TO EMPLOYEES PN151
FURTHER CROSS-EXAMINATION BY MR JOHNSON PN153
THE WITNESS WITHDREW PN157
EXHIBIT #O3 RESPONDENT'S OUTLINE OF SUBMISSIONS PN189
EXHIBIT #O4 EXTRACTS FROM EBA3 PN221
EXHIBIT #O5 EBA4 TRANSPORT WORKERS UNION QANTAS AIRWAYS LIMITED PN231
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