AG2010/6429, Transcript of Proceedings [2010] FWATrans 506 (29 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25225-1

VICE PRESIDENT WATSON

AG2010/6429

s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Qantas Ground Services Pty Limited
and
Transport Workers' Union of Australia
(AG2010/6429)





Sydney

9.33AM, THURSDAY, 11 MARCH 2010

PN1

THE VICE PRESIDENT: Can I have the appearances please?

PN2

MR P. SMITH: If the tribunal pleases, my name is Smith, initial P, and I appear for the applicant Qantas Ground Services Pty Ltd, and in attendance from the company is MR I. BANNON and MR J. McKENNA.

PN3

THE VICE PRESIDENT: Mr Smith.

PN4

MR M. BURNS: Your Honour, my name is Burns, initial M, I'm here for the TWU.

PN5

THE VICE PRESIDENT: Thank you, Mr Burns. Yes, Mr Smith.

PN6

MR SMITH: Thank you, your Honour. This is an application by Qantas Ground Services Pty Ltd pursuant to section 318 of the Fair Work Act. It was filed in the tribunal on 3 March 2010 and was accompanied by a statement of Ian Bannon. Mr Bannon's statement has a series of annexures to it. Your Honour may recognise that it's an application in very similar form to one that was recently before you in another matter, where Qantas Ground Services was the applicant.

PN7

Your Honour, the application - the TWU is here, but the application is not opposed. Just be guided by you on how best to proceed today. I do have proposed draft orders and also another document which is a summary of what we say would be the company's submissions in relation to the considerations that are set out in the act at section 318(3)(a) to (g). If it assists the tribunal, I could hand up both those documents.

PN8

THE VICE PRESIDENT: Yes, thank you for that. I might mark the statement of Mr Bannon exhibit S1 in these proceedings. It's on the file - I take it in the circumstances there's no desire to supplement that evidence or cross-examine Mr Bannon?

PN9

MR BURNS: No.

PN10

THE VICE PRESIDENT: So I'll mark that statement exhibit S1.

EXHIBIT #S1 STATEMENT OF MR BANNON

PN11

MR SMITH: Then, your Honour I'll hand to your associate two documents. One being a draft order and the other a summary of considerations prepared by the company.

PN12

THE VICE PRESIDENT: I won't mark the draft order but I'll mark the summary of considerations exhibit S2.

EXHIBIT #S2 SUMMARY OF CONSIDERATIONS

PN13

THE VICE PRESIDENT: I can indicate, Mr Smith, I've read the statement of Mr Bannon and the application and note that Mr Bannon's statement also addresses the factors in section 318(3) as well.

PN14

MR SMITH: Yes, okay. Look, thank you, your Honour. Well perhaps if - are there any questions arising from that reading or - - -

PN15

THE VICE PRESIDENT: No, I don't have any questions and you're free to make whatever submissions or rely on the material you've filed as you see fit.

PN16

MR SMITH: Yes, well - okay look, the company relies on the material as filed. We understand that it addresses each of the relevant criteria required in the act in section 318 - and we'll hear from the TWU - the application is unopposed and materially, of course, supported by the employees as evidenced by the conditional letters of offer which they've signed. The overriding consideration which we'd identify in the matter is that if this application is approved, the orders made today will create an opportunity for these employees, who are otherwise temporary employees, to obtain employment within the Qantas Group on acceptable terms to them, and in the absence of any questions we would seek that the order be made in the terms proposed.

PN17

THE VICE PRESIDENT: Thank you, Mr Smith. Mr Burns?

PN18

MR BURNS: TWU consents to the application. This is similar to the recent Perth section 318 application we did before you a weeks ago. It's the same arrangement between the union and Qantas that this procedure goes ahead. We might say, for the record, that we don't necessarily agree with Mr Bannon's statements from paragraph 27 onwards in his affidavit about the negativity of the Qantas EBA 7. This QGS entity does appear to be an alternative employment vehicle that Qantas has set up to facilitate this employment arrangement in the current market.

PN19

The rates of pay under the EBA 7 are higher than the rates of the pay under the QGS agreement, but nevertheless, in this current market, this is what the union has agreed to with the company to facilitate the transfer of these employment - because this is the way Qantas has sought its direction. Rather than integrate its employees back into Qantas generally, it wants to put them into this QGS employment vehicle, so we'll just have to see how it all works out in future.

PN20

THE VICE PRESIDENT: Thank you, Mr Burns. I thank you for those submissions. I am in a position to indicate my decision in relation to this matter. The application is made by Qantas Ground Services Pty Ltd for an order under section 318 of the Fair Work Act, relating to instruments covering the new employer and transferring employees. The orders sought are that the modern award and the Qantas TWU enterprise bargaining agreement 7 will not cover Qantas Ground Services Pty Ltd and any transferring employees, where there is a transfer of business from Qantas Airways Ltd to Qantas Gound Services Pty Ltd and a transfer of employees between the two entities, and that, in lieu of those instruments, the Qantas Ground Services Pty Ltd ground handling agreement will cover any transferring employee.

PN21

I have considered the material filed and the evidence of Mr Bannon in relation to these matters. In my view, the evidence of Mr Bannon addresses the various considerations that Fair Work Australia must take into account in accordance with section 318(3) of the act. Having regard to those considerations and the evidence and circumstances of this matter, I am of the view that an order should be made in the terms sought. In essence, I believe that it is industrially and operationally desirable that all employees of Qantas Ground Services, regardless of their employment history, are covered by a single instrument, being the Qantas Ground Services Pty Ltd Ground Handling Agreement 2009.

PN22

I will make an order, as I indicated, in the terms sought. That order will be issued from my chambers as soon as practicable, and these proceedings are now adjourned.

PN23

MR SMITH: Thank you, your Honour.

<ADJOURNED INDEFINITELY [9.42AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 STATEMENT OF MR BANNON PN11
EXHIBIT #S2 SUMMARY OF CONSIDERATIONS PN13