C2007/2586, Transcript of Proceedings [2008] AIRCTrans 364 (16 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18734-1

COMMISSIONER FOGGO

C2008/2586

s.496(1) - Appl’n for order against industrial action (federal system).
Airservices Australia
and
United Firefighters’ Union of Australia
(C2008/2586)

MELBOURNE

10.07AM, TUESDAY, 01 JULY 2008

Continued from 27/6/2008

PN135

THE COMMISSIONER: Good morning. Are there any changes in appearances?

PN136

MR M TAMVAKOLOGOS: Commissioner, I seek leave to appear for Airservices.

PN137

THE COMMISSIONER: Yes. Leave is granted, Mr Tamvakologos.
Mr Borenstein.

PN138

MR BORENSTEIN: Commissioner, following the hearing on Friday the union sent a document to all members in Darwin. I think a copy has been provided to the Commission. I don't know whether you've had a chance to see it. It's a memorandum on 27 June. If you don't have it we've got some copies here we can hand up.

PN139

THE COMMISSIONER: Thank you.

PN140

MR BORENSTEIN: And you will see that the document provides to each of the workers a copy of the statement which you made on Friday and also directs them to comply with the request that all reasonable requests to fill vacancies from
27 June up to and including 1 July be accepted, et cetera. And you will see that the penultimate paragraph directs them not to give effect to the two motions passed at the meeting on 30 June. So far as the union is aware the overtime issues which were raised on Friday have been dealt with and people attended and worked the overtime that was necessary to fill the slots. Our expectation is consistent with this document that reasonable requests for overtime will continue to be filled and as is clearly instructed in the second last paragraph, that the two motions which were the items of concern to the employer will not be given effect to.

PN141

And so we believe that and we submit that the concerns which the employer raised in the Commission on Friday have now been fully met.

PN142

THE COMMISSIONER: Thank you, Mr Borenstein. I do want to acknowledge that that appears to be fully in line with the statement that was issued and I thank you for that.

PN143

MR BORENSTEIN: Yes.

PN144

THE COMMISSIONER: I want to mark it.

PN145

MR BORENSTEIN: Yes indeed. I don't think we handed anything up last time.

PN146

THE COMMISSIONER: I don't think so.

EXHIBIT #UFU1 DOCUMENT

PN147

MR BORENSTEIN: We would submit that that then disposes of the proceedings that were issued and that they should be dismissed or struck out or some appropriate order that closes the file. And then that leaves the question of the previous proceeding which you raised on the last occasion as well which was an application for the Commission's assistance under section 170LW which came on for an interim hearing before Commissioner Smith just before Christmas. Before I go to the detail of it you mentioned on the last occasion that you had not heard anything after that application and I am in a position to tell the Commissioner that in fact although the Commission hadn't been approached that there had been communications between the parties with an attempt to resolve the underlying roster issue.

PN148

There have been discussions and proposals backwards and forwards. Those proposals haven't come to any final conclusion as yet. As I am instructed there was a proposal that was put by the union in May which hasn't been responded to yet, but that leads us to what I was about to say now as to how the LW matter should be progressed. We would ask the Commission to assist the parties with conciliation in relation to it over a limited period of time. So perhaps in the next week or two weeks. I add that we would need a little bit of notice for the conciliation because we would need to have Mr Stenhouse from Darwin present because he's been intimately involved and he's on the ground out there.

PN149

THE COMMISSIONER: Yes.

PN150

MR BORENSTEIN: He's available to come down at reasonably short notice, but it's still a long trip from Darwin. And he's going on leave for three weeks on
14 July so we would like to have those conciliation matters, sessions, before
14 July and perhaps time for more than one if that's possible. In relation to the actual progression of the proceeding if it needs to proceed our position is that the witnesses, the relevant witnesses are all located in Darwin, both ours and we anticipate the employers. And if you recall that on Friday we had two of their officers who were in Darwin sitting in the court room up there.

PN151

THE COMMISSIONER: Yes.

PN152

MR BORENSTEIN: So really the appropriate forum we would submit is Darwin. And we would need a little bit of time to obtain witness statements and so on if the matter is to proceed. We would have to send someone to Darwin to formulate those. And so we would ask, if it comes to it, we would ask for a period of some 28 days to allow us to attend in Darwin, see who we need to call. We don't have a firm understanding yet of how many witnesses we'd want to call, but there would be at least, we would think, at least two or three. And when we get up there it may be that there are other people that have relevant information that we would have to speak to. It's hard to do it from down here at this distance.

PN153

So our position is that in summary we would like to have some conciliation, the hearing should proceed in Darwin if it's to proceed and we would ask for some 28 days to obtain and file witness statements. If the employer needs a similar period of time we don't have any objection to that. If they can do it in a shorter time that's fine with us as well. We would ask for a hearing date if there is to be a hearing in Darwin that is no earlier than 7 August because that's when
Mr Stenhouse returns from his leave. There is also one other matter that I should mention and it's this. In the hearing in December on the interim order our friend averted to an issue of jurisdiction.

PN154

Now, I've asked him this morning whether he's in a position to concede or accept that the Commission has jurisdiction and he has indicated that he can't do that this morning and we accept that. But we think it would be appropriate for him on behalf of the employer to indicate before the end of the week whether there is to be some jurisdictional objection taken and if there is then that should be taken before we launch into the preparation of a very expensive exercise.

PN155

THE COMMISSIONER: Yes.

PN156

MR BORENSTEIN: And he can tell you, Commissioner, whether he can deal with that in that time frame. That's our position and that's what we would suggest as a way of progressing the matter.

PN157

THE COMMISSIONER: Yes. That's very helpful, thank you. Yes, what does ASA say?

PN158

MR TAMVAKOLOGOS: Thank you, Commissioner. Commissioner, I can confirm that the memorandum which you marked as UFU1 was circulated at Darwin Airport and I am instructed put on the notice board there. The effect of the Commissioner's statement on Friday has been that the roster has been fully manned and the Darwin Fire Station held category over the weekend and also yesterday. And I am further instructed that as matters stand there are no vacancies on the overtime roster.

PN159

THE COMMISSIONER: For what period?

PN160

MR TAMVAKOLOGOS: My understand is for this week.

PN161

THE COMMISSIONER: For how long?

PN162

MR TAMVAKOLOGOS: For this week.

PN163

THE COMMISSIONER: For this week?

PN164

MR TAMVAKOLOGOS: Yes. Now, one potential matter of concern which is just worth raising with you, Commissioner, is that whilst the memorandum issued by the UFU obviously had its intended effect, it is expressed to apply only up to and including 1 July. So whilst I've heard what Mr Borenstein has said about what he expects to happen in the future I just make that point that the memorandum is only expressed to apply up to and including 1 July.

PN165

THE COMMISSIONER: Could I just say in relation to that, if there is a process which is agreed to by the parties here, part of that process will be that the understanding which was contained in UFU1 will continue for the duration until these matters are completed.

PN166

MR TAMVAKOLOGOS: Thank you, Commissioner. Now, in relation to the other matters which my learned friend has raised in relation to the location of the hearing we hear what he's said about everybody being in Darwin and the underlying dispute is the UFU's dispute. So we have no objection if my learned friend wishes for that to occur in Darwin, for it to occur in Darwin. And in relation to the jurisdiction point which was raised, Commissioner, I appeared during the December hearing and the jurisdiction point that was there raised actually concerned whether the Commission had jurisdiction to make an interim order. Now, I'm not in a position today to say whether there will be any other jurisdiction point raised in relation to that dispute, but I'm happy to notify my learned friend by the end of the week whether there will be any point.

PN167

THE COMMISSIONER: Yes, thank you. I think that will assist.

PN168

MR TAMVAKOLOGOS: Yes. Now, that leads I think the outstanding matter of directions which we flagged with you on Friday. Commissioner, I sent a facsimile to Slater and Gordon yesterday which suggested some dates in the hope that we could come to you today with a consent position. It seems that we don't have one, but Airservices' main concern, Commissioner, which was flagged on Friday is simply to see that that underlying dispute is dealt with as quickly as can be so it doesn't cause any of the issues that it has caused to date. In terms of the suggested directions perhaps I can just hand that to the Commission.

PN169

THE COMMISSIONER: Should I mark this? Or is it more for information?

PN170

MR TAMVAKOLOGOS: Yes.

EXHIBIT #ASA7 SUGGESTED DIRECTIONS

PN171

MR TAMVAKOLOGOS: Yes thank you, Commissioner. Now Commissioner, a point was also raised in the context of the directions about conciliation. My instructions are that there have been discussions between the parties behind the scenes in an attempt to resolve the dispute and those discussions have been unsuccessful. Now, in our submission the preferred course would be for some directions to be made about the hearing of the matter, but if my learned friend considers that conciliation might bear some fruit over a very short period of time, for example the next week, then Airservices will participate in that process. But as I say, we do that without prejudice to the matter coming on and being heard.

PN172

Mr Borenstein mentioned a time line of 28 days for the union to formulate statements. We don't consider that that length of time is necessarily warranted, Commissioner, but we're in your hands about directions. Commission pleases.

PN173

THE COMMISSIONER: Yes, thank you. It would be useful to go into conference to discuss further progress in this matter.

<NO FURTHER PROCEEDINGS RECORDED [10.21AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UFU1 DOCUMENT PN146
EXHIBIT #ASA7 SUGGESTED DIRECTIONS PN170