C2008/3171, Transcript of Proceedings [2008] AIRCTrans 629 (15 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

VICE PRESIDENT WATSON

C2008/3171

s.496(1) - Application for order against industrial action (federal system)
Air Services Australia
and
Civil Air Operations Officers' Association of Australia
(C2008/3171)

MELBOURNE

5.04PM, FRIDAY, 3 OCTOBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Hearing continuing

PN1

MR S AMENDOLA: I seek leave to appear on behalf of Air Services Australia, the applicant in this proceeding.

PN2

MR C DOWLING: I seek leave to appear on behalf of Civil Air Operations Officers Association of Australia.

PN3

THE VICE PRESIDENT: Thank you, Mr Dowling. Leave is granted to counsel in both cases.

PN4

MR DOWLING: Thank you, your Honour. I indicated to my friend that unfortunately my client is still on his way here. He has just arrived through the door. I haven't yet had the opportunity to take instructions so I wonder if the matter could be stood down briefly so that I may be given that opportunity?

PN5

THE VICE PRESIDENT: What's your view about that, Mr Amendola?

PN6

MR AMENDOLA: Well, we wish to proceed, your Honour, but I wouldn't object to the course my friend suggests so long as it's reasonably quickly done.

PN7

THE VICE PRESIDENT: Is 10 minutes sufficient, Mr Dowling?

PN8

MR DOWLING: If I could push it to 15, your Honour.

PN9

THE VICE PRESIDENT: We'll resume at 5.20.

PN10

MR DOWLING: Thank you.

<SHORT ADJOURNMENT [5.05PM]
<RESUMED [5.21PM]

PN11

THE VICE PRESIDENT: Mr Amendola.

PN12

MR AMENDOLA: If the Commission pleases. My friend has foreshadowed that he wants to make an application for an adjournment saying he's prepared to have the matter heard on the weekend to have the matter finally determined, at which stage I indicated that if that was what he was going to do and if the Commission was minded to deal with it in that way we want to proceed but we'd be seeking an interim order. But perhaps the best thing for me to do is just to proceed on.

PN13

MR DOWLING: Well, I don't think there's much point in my learned friend proceeding on because that will render my application nugatory I think, your Honour. I foreshadowed to my friend that I'd make an application. Perhaps now is the appropriate time to do so. I hear what my learned friend has said in relation to his attitude but if I don't make it now there doesn't seem to be much point in making it. Are you content for me to do that?

PN14

THE VICE PRESIDENT: Yes, Mr Dowling.

PN15

MR DOWLING: Thank you, your Honour. I am instructed, your Honour, that the application that constitutes the matter before you was served on my client at some time after 3 pm this afternoon and some time after that the notification of listing. I am also instructed that Mr McGuane, the executive secretary of Civil Air was on leave or is on leave. As is obvious to your Honour, he arrived shortly after the commencement of the application and I've had the last 15 minutes to take as many instructions as I possibly can. But in the circumstances of what I'm instructed to seek is that the matter be adjourned to enable us to properly deal with the application to enable me to obtain adequate instructions so as to deal with the application.

PN16

I appreciate, your Honour, that the Commission has certain obligations under section 496 to hear and determine the matter as soon as possible or within 48 hours, I think section 496(5) requires. So it is in that context that I raised with my learned friend our preparedness to sit on the weekend. On my instructions there's no need for an interim order tonight or over the night. Those people who are working shifts have already started the shifts and there's no utility in it. But we are certainly happy and willing, subject of course to the Commission's convenience and my learned friend, we're certainly willing to sit over the course of the weekend. But the reason I'm instructed for the adjournment application, your Honour, is so that my client can adequately deal with the matter that has only in very recent minutes come to its attention.

PN17

THE VICE PRESIDENT: What comfort can you give Mr Amendola's client in relation to work in the interim period?

PN18

MR DOWLING: Your Honour, the answer to that may depend on what the interim period is. If the matter is to be heard tomorrow morning we say there may in fact be no need to those people that are working shifts, currently working shifts and they're either working or they're not working, there may need to be nothing further said. If the matter is to be heard on Sunday - - -

PN19

THE VICE PRESIDENT: It might be a question of how they're working. I don't know the circumstances but it might be a question of how they're working as well as whether they're working and I would have thought the relevant period in relation to my question is from now until completion of hearing of the matter, whenever that might be.

PN20

MR DOWLING: Yes, sorry, your Honour, if I misunderstood what you said. But as I understand the basis of the application, it's that people are refusing to work additional hours, as I understand its put. So that is, they're not at the workplace. It's not a suggestion that the way in which they are working whilst at the workplace constitutes the industrial action and that's why I answered your Honour in the way that I did. So if they're there there's been no refusal to work the hours, but I'm happy to take some instructions.

PN21

THE VICE PRESIDENT: You say that that's the nature of the controversy and the alleged industrial action and all people who are requested to be at work are at work?

PN22

MR DOWLING: Yes, your Honour. Perhaps if for my learned friend to frame his application, but that's as we understand it. It's those people that are refusing to attend for work when a request is made for them to do additional hours. Now, between tonight and tomorrow, perhaps my learned friend can say if there's going to be requests made for people to work additional hours then we can perhaps put something to the Commission as to what we say about that. But if there's no request made between tonight and tomorrow for people to work additional hours then there's no utility - well, there's no need for us to say anything further.

PN23

THE VICE PRESIDENT: Perhaps I should hear from Amendola as to whether there is an issue and the nature of it.

PN24

MR DOWLING: Thank you, your Honour.

PN25

THE VICE PRESIDENT: Mr Amendola.

PN26

MR AMENDOLA: Your Honour, in terms of the way the application is framed my learned friend has put it correctly, it relates to people agreeing to work additional duties. But the manner in which this issue arose, and it's arisen in Sydney, was that during the course of yesterday evening people who were meant to work through the morning or day shift called in sick. There were a number of them. That happens and we're not making an issue about that, but it's what took place when that occurred where a number of people were contacted to be asked to sort of work additional hours and there was seven people contacted, three of them were unavailable in the sense - or there were seven people where attempts were made to contact them, three of them were not able to be contacted in the sense that they were away. Two others did not return phone calls and two others refused to do additional hours.

PN27

It's not just a matter of my learned friend saying, well, you know, people have started their shifts, have started, they're there, there's no issue. The question is whether we can have any confidence that if the same situation arises, given that we say that there is a state of mind of at least some air traffic controllers refusing to do additional duties and that we'd seek to prove that in evidence, that the same issue won't arise. That's in a sense made pointed by one of the attachments that's contained in the application where there are some handwritten notes, your Honour, that make it clear what at least, although they're not identified, some air traffic controllers think in terms of the idea of doing additional hours.

PN28

I only say that, I mean it would be something I would seek to lead in evidence, but when there's a notice that says in attachment A -

PN29

Haven't you seen the threat on the Civil Air forum? I suggest you and your other two mates take a peak. It's titled ..... Take the Hint.

PN30

And then you have a note behind that which is asking people to check out what people are saying about three UFB controllers on regional services and those people were offering to do additional duties when asked - sorry, not offering, were accepting additional duties when asked -

PN31

You guys are a disgrace. Every controller is watching what you're doing. It ain't hard to bring up a day sheet. Unions are meant to be united.

PN32

Now, that occurred in Melbourne and we're saying in a sense it's evidence of a state of mind. We're not saying that this filtered its way through to Sydney, although we say it is evidence of a state of mind for some air traffic controllers. And what occurred today, which was incredibly disruptive at Sydney Airport and there would be evidence that we'd lead about that, including letters that were sent by Qantas and Jetstar to my client, about the impact of almost fully loaded planes being significantly delayed because there was some air traffic controllers who were sick and there was an incapacity on behalf of my client to have people come in because they were refusing to do additional duties.

PN33

That situation may well arise overnight again and I'm happy to put Mr Lee in the witness box to ask him about his confidence about whether or not if it arose that he felt that we could cover the situation and it's in those circumstances, your Honour, that I think if my friend wants more time to get more instructions to argue about the case then I've got no difficulty with that and I would say that the Act requires, unless it's contrary to the public interest, that the interim order be provided and I don't see a reason why in those circumstances they wouldn't agree to the terms of an interim order whilst the matter is otherwise dealt with.

PN34

My client has got significant concerns about the weekend insofar as Sydney is concerned. My friend might say they're groundless but they're concerns given what's happened today and I think they're entitled to have those concerns.

PN35

THE VICE PRESIDENT: Is this particular weekend a heavy traffic period and I can imagine Friday morning - - -

PN36

MR AMENDOLA: School holidays, the Rugby League grand final, the long weekend, your Honour, yes, we say and especially given what's happened today, because what's happened today, your Honour, is that the planes have been significantly delayed. So up to a number of hours and it's meant, for example, in some instances that people who were wanting to meet in particular hubs to go off somewhere else where there aren't direct flights haven't been able to do that. It has been highly disruptive. Now, take anything pejorative out of that, that is the fact, it has been highly disruptive. Now, we say it's because of industrial action. I don't know what my friends will say. But if they want to prepare and want some time to prepare, that's okay, but we'd say that we should be given an interim order and I wouldn't see why there should be any opposition to in the circumstances. If the Commission pleases.

PN37

MR DOWLING: In my submission, your Honour, what I had to say about the order was to make sure it had some utility. My learned friend, what I understood, what my questions and my concern was really directed at was is there a shift between now and tomorrow where people have indicated they will not be attending for work and therefore there is a need for Air Services to request people to do additional hours. Now, I have anticipated that my learned friend would know that now. There is either a need to request people to do additional hours tomorrow or there isn't.

PN38

THE VICE PRESIDENT: Don't people call in sick when they're sick?

PN39

MR DOWLING: Well, that might depend on - I understood that concerns will arise from Sydney Airport if there is some shift that my learned friend can indicate is about to commence rather than has already commenced that they anticipate some issue arising then we'll listen to it and take some instructions, but that's - - -

PN40

THE VICE PRESIDENT: What if people call in sick tomorrow morning prior to the commencement of the first shift and similar experiences occur that has occurred this morning, whatever that might have been? Let's take for example the example of seven attempts to contact people that Mr Amendola alleges occurred. Wouldn't that be detrimental?

PN41

MR DOWLING: Well, I think your Honour asked what assurances my client is able to give and we're happy to give as much as we're able. It's the position and I think it's obvious from the papers that there's no organised campaign by the union and there's nothing in the material that demonstrates such a thing. We're happy to publicly state that there is no campaign by the union requesting, organising or in any other way suggesting that people not work additional hours. My learned friend should be well aware of that because my client has written directly to his saying that our position with respect to additional hours is the same as theirs, that people are required under the terms of the certified agreement to work reasonable additional hours and subject to the subsections in section 4.3 that provide the air traffic controllers with some circumstances where they may not be required.

PN42

Subject to that, there's no difference between the parties that there's a requirement to work reasonable additional hours and my client is happy to publicly state that. There's nothing in the material before you to indicate any participation at all by my client and from what my learned friend has told me about what he proposes to put before you, he doesn't propose to put anything before you that goes to that either.

PN43

THE VICE PRESIDENT: What about members of your client?

PN44

MR DOWLING: Well, from what I've seen of the application there's nothing that suggests there's a campaign by the members either. There's a note referring to see this thread and there's a chat forum where people are talking about what they may or may not do and nowhere is there a suggestion that there's some form of campaign or that the industrial action, certainly there's no suggestion it's happening. In my submission I intend to make there's no suggestion that it's threatened and there's certainly no suggestions of being organised. The material that my friend intends to rely on from what a very short opportunity that I and my client have had to look at it goes nowhere near that, either my client or the members of my client, your Honour.

PN45

THE VICE PRESIDENT: But what do you say is the explanation for what occurred this morning, or possible explanations?

PN46

MR DOWLING: Well, there is, on my very limited instructions, a fluctuation without any pattern about the occasions on which people are able to work because of illness and there is equally a fluctuation about the ability of people to replace them and to work additional hours. Now, what your Honour can't conclude from all of that is because on one morning three out of six people are unable to work and seven people at a telephone are unable to replace them in additional hours, that that meets a threshold of industrial action being organised or taken. There is necessarily a fluctuation with respect to these things.

PN47

There has been some structural changes throughout the practice, throughout the operation of the applicant which we say has taken operational people out of its operation, so that means in our submission they are asking fewer people to do more hours and necessarily that's going to put a strain on those fewer people. But what your Honour can't conclude is that there is a campaign or that there is industrial action taking place. On the material and the very short time we've had to go through it it simply doesn't get there and it's for my friend to prove that that's the case. It's not for us in our submission to say, well, here's the explanation for what occurred. We say there's a fluctuation in these things, there's operational people taken out of the system and what occurred on one morning in October does not make industrial action.

PN48

THE VICE PRESIDENT: Proving something might be a matter for the case itself but my concern in relation to your application for an adjournment is that position of the parties but also the travelling public and everyone else affected is not prejudiced by that situation and that may involve some assumptions that what might be the nature of the case might end up being the case. So I’m not approaching it on the basis that anything is established or might be established prior to it being fully heard. But isn't it reasonable to assume for the purposes of your application for an adjournment that what your learned friend alleges might be correct?

PN49

MR DOWLING: Not in our submission, your Honour. We say simply because we make an adjournment application doesn't entitle my learned friend to an interim order without satisfying your Honour that there's some need for it to be made and in the circumstances of the material before you that just simply isn't made out. He doesn't get jump a step simply because we are caught short and require further time.

PN50

THE VICE PRESIDENT: I think that's correct, there's two steps here. You're seeking an adjournment and he's foreshadowing seeking an interim order if there is an adjournment and I would hear him fully in relation to his application for an interim order if there can't be accommodation between the parties and the nature of the accommodation may be assurances that are satisfactory to the parties about operations in the interim period, satisfactory to both sides or the terms of an interim order that might be made for an interim basis that may be agreed. Now, if it's not agreed then I'll hear from Mr Amendola on any application he seeks to make.

PN51

MR DOWLING: Yes, your Honour. I offered up the public statement, your Honour, largely because there's little more my client can do. My client says it's not engaged in any form of industrial action and as far as it's aware its members aren't engaged in any form of industrial action, so it's willing - - -

PN52

THE VICE PRESIDENT: I just wonder whether given what I've said and I think both sides area acknowledging in a sense that it might be appropriate to allow proper conduct of the case but also Mr Amendola is saying and certainly it is a concern for me, that if there is going to be any adjournment beyond this evening that there is appropriate protection given the nature of the employment we're talking about it and I just wonder whether if I allowed you some time to discuss the matter further with Mr Amendola that might lead to something fruitful.

PN53

MR DOWLING: I'm certainly willing to do that, your Honour.

PN54

THE VICE PRESIDENT: Do you see any point in that, Mr Amendola?

PN55

MR AMENDOLA: I have no objection to that course of action, your Honour.

PN56

THE VICE PRESIDENT: I can indicate that I would be prepared to adjourn the matter if there was some basis of agreement of the parties for that adjournment and sit again on the matter tomorrow afternoon. I can indicate that to the parties and I would encourage counsel to confer on whether an agreed basis for such an adjournment could be reached. I propose to adjourn briefly and perhaps the parties can let my associate know when they're ready.

<SHORT ADJOURNMENT [5.43PM]
<RESUMED [8.24PM]

PN57

THE VICE PRESIDENT: The parties have had some discussions. Who is able to report?

PN58

MR AMENDOLA: Me, your Honour. Before I do so can I thank the Commission, (1), for listing this matter promptly and for going through what you've gone through whilst we've tried to go through what we've been going through, so from my part and on the part of my client we do thank the Commission for dealing with the matter and that it's dealt with it. My learned friend and I have had discussions on behalf of our clients and we've agreed a way going forward in respect of this proceeding and that is on the following basis and my learned friend will indicate if I'm not putting it accurately, that Civil Air will post on its website tonight a statement in the following terms, that -

PN59

Civil Air does not endorse any refusal to work a reasonable amount of additional hours on a request other than in accordance with clause 4.3.1(a) to (e) of the certified agreement, and recommends its members use their best endeavours to ensure any unplanned absences are covered.

PN60

I am advised by my learned friend that his client will also contact their members on Sydney approach or TCU to advise them that that is on their website and my learned friend has advised me - well, and then my client has instructed me that if by tomorrow morning at 9 am everything is fine, in other words, that people are at work and everything is working, that my client will contact both - or I will contact Mr Dowling and the Commission to advise that my client withdraws the application. I am also advised that my learned friend does want to put something on the record otherwise. If the Commission pleases.

PN61

THE VICE PRESIDENT: What if everything is not fine at 9 am tomorrow?

PN62

MR AMENDOLA: Then we'd ask that the matter be listed at your convenience tomorrow afternoon.

PN63

THE VICE PRESIDENT: Should it be listed in the event that it might be necessary or should it await that news?

PN64

MR AMENDOLA: Well, your Honour, in a sense either way it should probably be listed with me to advise that it's no longer necessary to proceed. It's probably the best way of dealing with it I think, your Honour.

PN65

THE VICE PRESIDENT: Yes, thank you. Mr Dowling.

PN66

MR DOWLING: Thank you, your Honour, just three short matters. Firstly, on behalf of myself and my client we also thank you for the time that the Commission has put in. Secondly, can I say that the description my learned friend gave in terms of the proposal reached to move forward, as he said, is correct so far as my client is concerned. Thirdly, I just wanted to clarify and indicated this to my learned friend because there was some discussion between the parties, the position of my client in respect of the additional hours clause 4.3 so there is no confusion between the respective parties. The position of my client is as expressed in its correspondence of 6 August 2008 to Mr Mueller of Air Services Australia, that letter sets out my client's position.

PN67

I don't intend to hand a copy to you, your Honour, I just raise that so that it's clear between the parties what the position of my client is.

PN68

THE VICE PRESIDENT: Yes.

PN69

MR DOWLING: Other than that I have nothing further to add, your Honour.

PN70

THE VICE PRESIDENT: Yes, thank you, Mr Dowling. I thank the parties for the progress they have made this evening. I propose to adjourn this matter until 2.30 pm tomorrow afternoon, 4 October. That matter will not proceed if the applicant contacts my associate and indicates that it does not wish to proceed with the application. On that basis the Commission will now adjourn.

<ADJOURNED UNTIL SATURDAY, 4 OCTOBER 2008 [8.29PM]