BP2008/2975, Transcript of Proceedings [2008] AIRCTrans 178 (24 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18382-1

COMMISSIONER RAFFAELLI

BP2008/2975

s.451(1) - Application for order for protected action ballot to be held
Australian Licenced Aircraft Engineers Association, The
and
Qantas Airways Limited
(BP2008/2975)

SYDNEY

10.07AM, MONDAY, 14 APRIL 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE SYDNEY

PN1

MR W MANSFIELD: I appear with MR S PURVINAS and in Sydney
MR W VASTER on behalf of the association.

PN2

MR D PERRY: I seek leave to appear for Qantas Airways Limited with
MR J MORLEY.

PN3

THE COMMISSIONER: Yes, thank you Mr Perry. I think we granted leave on the last occasion. Actually this is a new matter, sorry.

PN4

MR MANSFIELD: Commissioner, I’m sorry about this, but we had this problem last time where we could not hear your comments.

PN5

THE COMMISSIONER: Okay.

PN6

MR MANSFIELD: When you just spoke then I really couldn’t hear what you were saying.

PN7

THE COMMISSIONER: Okay. Mr Mansfield, do you object to Qantas being represented?

PN8

MR MANSFIELD: No, no objection, Commissioner.

PN9

THE COMMISSIONER: Leave is granted, Mr Perry. Yes Mr Mansfield.

PN10

MR MANSFIELD: Yes thank you, Commissioner. Sir, this is an application for a protected action ballot to be conducted under division 4 of the Workplace Relations Act 1996. The ballot is intended to authorise members of the association of licensed aircraft engineers to undertake protected industrial action against Qantas Airways Limited to endeavour to obtain an agreement from negotiations over an enterprise bargaining agreement. In relation to the application a bargaining period is current between the association and Qantas. Negotiations commenced in around October 2006 and a copy of the notice is included in the application.

PN11

Sir, the question to be put in the ballot is included in the application. The question is clear and unambiguous, and I quote:

PN12

Do you, for the purposes of advancing claims in the Qantas EBA negotiations, authorise the conducting of stop work meetings, the banning of overtime, higher duties and secondments and work stoppages of up to two days on education?

PN13

There are five elements in the question. One stop work meetings, two banning of overtime, three banning of higher duties, four banning of secondments and five work stoppages of up to two days duration. Each of these elements is common and well understood by ALAEA members to be balloted. And I’m pleased to say, Commissioner, there is no need to refer to the dictionary definition. Sir, there is a number of decisions of this Commission dealing with the requirements of the Workplace Relations Act in relation to protected action ballots. One significant decision was that of a full bench in PR973841. In a Country Fire Authority appeal against a decision by Commissioner Foggo to approve a protected action ballot application by the United Firefighters’ Union. In paragraph 31 the Full Bench stated:

PN14

In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.

PN15

Sir, the question in this application will be easily understood by the employees in each of the areas set out in the Full Bench decision that I’ve just quoted. Sir, going beyond the issue of the question the employees to be balloted are specified. They are licensed aircraft engineers employed by Qantas and members of the association. They are roughly 1500 in number. The association proposes that the Australian Electoral Commission conduct a ballot by post. A copy of the relevant notices under section 453(1) of the Act accompany the application. The application was authorised by the federal executive of the association in a ballot conducted in the proper way according to the rules.

PN16

There is no prohibited content in the claims made by the association against Qantas. And finally, a copy of the application has been provided to Qantas by facsimile addressed to the human resources manager. The association submits it has satisfied all of the procedural requirements of the Workplace Relations Act in making this application. Sir, the negotiations for a new EBA for licensed aircraft engineers employed by Qantas had been ongoing for some 18 months. They commenced around October 2006. The current EBA has an expiry date of
1 January 2007. There have been around 35 biddings between the parties which were working towards and agreement, however these have failed to secure a positive outcome.

PN17

In late 2007 the association sought and was granted a protected action ballot and this was undertaken by the Australian Electoral Commission and the outcome was of those who voted around 86 per cent voted in favour of protected action. The action proposed was broadly similar to that in the current question and the first day was to be 17 December 2007. In January 2008 conciliation was undertaken by the AIRC and further negotiations were also undertaken between the parties. These included the direct involvement of the Qantas CEO, Mr Dixon. These negotiations led to some improvement in the Qantas offer which in the judgment of the negotiators may have been sufficient for it to be acceptable to their members.

PN18

In early February 2008 it was accepted by the parties that a draft agreement would be taken back to ALAEA members for their consideration and that draft agreement included a proposed four year term, annual wage increases of 3 per cent per annum consistent with the overall Qantas wage policy of increases of no more than 3 per cent, the date of effect of the first increase to be 1/1/07, some changes to the classification structure including a new level 14, a one off improvement in advancement arrangements through the structure for levels below level 9, improvement in some allowances, 1 per cent extra employer superannuation for some engineers, addition and salary sacrifice entitlements for some engineers.

PN19

The association then consulted with its members on the acceptability of the Qantas offer and meetings were held in the states during February. Sir, the outcome of those meetings was an overwhelming rejection of the proposed agreement. That clear negative response has led the association to seek to hold further negotiations with Qantas and then due to their failure to improve the offer, a fresh protected action ballot which will in effect allow members not only to vote on the industrial action, but also in part should they agree with the current offer, to vote no. Sir, the history of the negotiations to date is, in our view, a clear indication that the association has made a genuine attempt to reach agreement with Qantas.

PN20

Since October 2006 there have been over 35 meetings held between the parties. The ALAEA has always been available to meet with Qantas. The ALAEA is refrained from undertaking industrial action, particularly over the Christmas period of 2007. The claims made at the outset with the exception of the elimination of one matter which may have been not allowable, have not changed. Its claims made on the whole being moderate in their scope and the ALAEA’s willingness, even at this late stage, to continue in negotiations with Qantas prior to and after the ballot outcome.

PN21

Sir, following the hearing of the protected action ballot application last Friday the association initiated a further meeting with Qantas in a final attempt to bridge the gap between the parties. The meeting took place in Melbourne on Wednesday of last week. What I should have said, sir, it was Friday of the previous week I think it was when the previous application was dealt with. And the issues at that meeting were broadly twofold. Firstly, there is a number of points that were contained in the draft agreement which had not been clearly or commonly understood by the two parties. There are differences in the application of a number of the items in the draft agreement which have caused confusion on the association’s side and which required at least some clarification.

PN22

Secondly, there is a serious gap between the wage claim of the association and the offer of Qantas. On the first point although it is clear that the level of trust currently existing between the two parties is low, or has been lowered, I believe that the differences in relation to the non wage issues can be resolved. On the second point there is a major problem. The ALAEA claims 5 per cent, the Qantas offer is 3 per cent. Sir, it is not necessary to canvas the merits of either the ALAEA claim or the Qantas offer. I would note, however, that the association have claimed a range of information of current wage outcomes of skilled workers from EBAs and elsewhere.

PN23

One list was of around 200 current EBAs for skilled metal tradesmen and from that list the average annual outcome was around 4 to 4.5 per cent wage increases. The current Qantas wage offer of 3 per cent, looking solely at the wage issue, was at or above only 17 other employer out of over 200 employers in the survey. A percentage of 8.5 per cent. So sir, this major company enjoying reasonable, if not near record, profits is offering some of the most highly skilled para professionals in Australia, who are responsible for the safety of Australia’s major airline and its passengers, a wage increase not only in the lower quartile of what other employers are offering, but in the lowest 10 per cent of employers.

PN24

Sir, I put that on the record simply to make the point that the association has been genuinely bargaining and is trying to reach agreement on the EBA. Unfortunately Qantas has not moved from its first offer of a 3 per cent per annum increase and the association now believes it is necessary to seek its members’ acceptance to undertake protected action. Sir, this application seeks approval for a ballot of members to undertake protected industrial action. It has, we believe, negotiated in good faith and is genuine in its attempt to reach agreement, yet all the requirements of the Workplace Relations Act is justified in seeking a mandate from members to undertake protected industrial action, has not sought an unrealistic outcome from its negotiations with Qantas and it has demonstrated patience to date. Sir, we submit that the application should be granted.

PN25

THE COMMISSIONER: Yes, thank you. Mr Perry.

PN26

MR PERRY: Thank you, Commissioner. While the Commission has obviously satisfied itself that the requirements of the Act have been met, the company doesn’t wish to make any submissions to the Commission today in relation to the application or the form of order which is proposed. Qantas is, of course, committed to keeping its aircraft fully operational and maintaining the best possible service for the public and it therefore reserves all of its rights in relation to any industrial or other action that might be taken by the ALAEA or its members. But beyond that, Commissioner, there is nothing further that I wish to say.

PN27

THE COMMISSIONER: Yes, thank you. Well, I needn’t labour the point, suffice to say that the Commission is satisfied that the requirements of the Act have been complied with and are satisfied and on the application the Commission determines that what is sought ought be granted and in particular I am satisfied that the provisions of section 461 have been met and the requirements pointed to by section 463 have also been satisfied. I will make two orders. One will be to determine that the Australian Electoral Commission will be the authorised agent for the ballot. The second one is the ballot order itself more fully and as
Mr Mansfield has said, the items there are set out.

PN28

The only thing, Mr Mansfield, is this. We consulted with - - -

PN29

MR MANSFIELD: Sir, could I just - - -

PN30

THE COMMISSIONER: You can’t hear me?

PN31

MR MANSFIELD: Pardon?

PN32

THE COMMISSIONER: You can not hear me?

PN33

MR MANSFIELD: No I can, I can. Barely, Commissioner, but I can hear you and I’m pleased to say I can hear you. Could I just point out that the association submitted a draft order to you and that followed some discussions we had with the Australian Electoral Commission. There is a couple of changes.

PN34

THE COMMISSIONER: Well, you cut me off first.

PN35

MR MANSFIELD: Sorry, sir. I'll let you go.

PN36

THE COMMISSIONER: I think you can’t hear me and there’s always a problem with video conferences. But I was saying is we contacted the Electoral Commission and based on their advice we prepared this draft which we forwarded to you, but I think subsequent to that Mr Purvinas has sent us an adjusted draft order and that’s probably what you’re seeking to address, so let’s look at that,
Mr Mansfield.

PN37

MR MANSFIELD: Yes, thank you Commissioner. Commissioner, simply to say that I understand in the first proposal that was discussed with the AEC the proposal was for the list to be provided by the employer and the union by Tuesday, I think it’s 15 April.

PN38

THE COMMISSIONER: Yes.

PN39

MR MANSFIELD: In consultation with the union it appeared that that could have been somewhat of a problem. Sir, we propose that that be Wednesday the 16th rather than Tuesday 15 April. In regard to the time table for the ballot we propose that the role of voters would close on Friday the 18th with the ballot opening on Monday the 28th and closing on Wednesday, 7 May which we believe would allow enough time to distribute the ballot papers to association members and for them to complete those papers and return them to the Australian Electoral Commission.

PN40

The only other change that we proposed, Commissioner, was that the original proposal was for voting to close on Wednesday, I think it was Wednesday 7 May at 10 am and we proposed to make that 1 pm rather than 10 am just in case the mail delivery of the AEC on that day came in a little bit later. But in all other respects, Commissioner, I believe the AEC is comfortable with that sequence of returning of lists, distribution of ballot papers and return of ballot papers.

PN41

THE COMMISSIONER: Well, can I just ask you this. Are you saying that the change that you’ve set out including the provision of lists by Wednesday rather than by Tuesday and then the closing of the ballot, I think the other change is the closing of the ballot on 7 May at 1 pm, are you saying that they are matters that you are able to raise with the Electoral Office and they are comfortable with?

PN42

MR MANSFIELD: I discussed those with the Electoral Office, Commissioner. Now, if the question is did they say specifically yes we can do that in that time, they didn’t, I can’t recall in detail that they said that so I can’t stand up here and say yes they did. But they indicated to me that providing that it had left enough time for ballot papers to be distributed and returned, they would manage that time table. And I believe, and we believe, that the distribution of the ballot starting Monday the 28th and returning on Wednesday the 7th by 1 o'clock gives over a week for the ballot papers to go out, be completed and be returned. And I think that should be quite comfortable for the AEC. That’s my belief, my clear belief.

PN43

THE COMMISSIONER: Well Mr Mansfield, what if I indicated that I will make the order but that we will have a further conference - because what we do not want is for the ballot to somehow be delayed and we need to have variations to orders, et cetera. But we will consult with the Electoral Office shortly and if the program that you have sought is acceptable, then that will be reflected in the order, if not it will be as they previously advised to us or perhaps they will agree that the Tuesday closing of the lists, this Wednesday is okay but they would rather that the ballot closed on Thursday rather than Wednesday in May. So in other words - - -

PN44

MR MANSFIELD: Commissioner, we’re comfortable with that.

PN45

THE COMMISSIONER: Yes, okay. Mr Perry, do you have advice?

PN46

MR PERRY: Just one small matter, Commissioner, just to ensure that the date for closing of the lists of Wednesday the 16th is for both order 5 and order 6?

PN47

THE COMMISSIONER: Yes, it’s for both the union and the company yes. Of course.

PN48

MR MANSFIELD: Yes.

PN49

THE COMMISSIONER: Yes. As I indicated I propose to make these orders. The principal order is subject to further clarification with the ballot agent, but either way those orders will issue very speedily. And in the meantime I guess both sides should now take steps to prepare those role of voters. It will either be by tomorrow or the next day. On that basis these proceedings are adjourned. Thank you.

<ADJOURNED INDEFINITELY [10.31AM]