C2013/6951, Transcript of Proceedings [2014] FWCTrans 210 (11 April 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049794-1

COMMISSIONER CLOGHAN

C2013/6951

s.739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union
and
Qantas Airways Limited
(C2013/6951)
Australian Services Union (Qantas Airways Limited) Agreement 10

(ODN ag2013/2822)
[AE405031 Print PR543844]]




Perth

9.08AM, THURSDAY, 3 APRIL 2014

PN1

THE COMMISSIONER: I will take the appearance.

PN2

MR R. DALTON: If the Commission pleases, I seek permission to appear for the respondent in this matter with my instructing solicitor Ms Francis.

PN3

THE COMMISSIONER: Thank you, Mr Dalton. Given the absence of the applicant's representative leave is granted. Mr Dalton, I have received material from both parties in relation to this application. What I propose to do in the first instance is mark that material and then I'll turn to you and ask whether you want to make any further submissions in relation to the application.

PN4

MR DALTON: If the Commission pleases.

EXHIBIT #A1 APPLICANT'S STATEMENT OF FACTS
EXHIBIT #A2 BUNDLE OF DOCUMENTS INCLUDING CASES REFERRED TO
EXHIBIT #R1 AGREED STATEMENT OF FACTS
EXHIBIT #R2 RESPONDENT'S RESPONSE TO APPLICANT'S STATEMENT OF FACTS
EXHIBIT #R3 RESPONDENT'S STATEMENT OF FACTS

PN5

THE COMMISSIONER: Mr Dalton, it's unfortunate that the applicant's representative is not here. My Associate hasn't received any response from the applicant as to why they're not here, but it would appear I would have thought some comments from the applicant in relation to some of the contentions that you made may have been useful on their behalf but as they're not here - - -

PN6

MR DALTON: The only possibility in my mind is they may have assumed that the hearing is on at 10 o'clock. We have not heard from them this morning and it's the union's application, we're responding to what they had put in their statement of facts which included some things in the nature of submission, we have put our own position in relation to the construction of the agreement. I am in a position to respond to some points that are raised in the written submissions of the ASU. I am in your hands as to how you intend to proceed. There is no urgency to this particular application, I don't know what your business is - your time table is for the rest of the day, whether we can ascertain where the ASU representative is. My only limitation is that - - -

PN7

THE COMMISSIONER: I don't want to waste your time, Mr Dalton.

PN8

MR DALTON: I have another commitment at two p.m. and then I need to return to Melbourne.

PN9

THE COMMISSIONER: In those circumstances I'll adjourn and see if my Associate can raise the applicant's representative but if she is not able to do I intend to recommence shortly.

PN10

MR DALTON: Yes, Commissioner.

PN11

THE COMMISSIONER: All I can do is ask you for your patience and if you could just remain in the hearing room precincts I'll take it from there. Thank you.

<SHORT ADJOURNMENT [9.14AM]
<RESUMED [9.55AM]

PN12

THE COMMISSIONER: I'll take your appearance, Ms McCarthy.

PN13

MS E. MCCARTHY: Emily McCarthy, appearing for the applicant, the Australian Services Union.

PN14

THE COMMISSIONER: Yes, is there anything else you would like to say, Ms McCarthy?

PN15

MS MCCARTHY: Yes, I would like to apologise sincerely for my lateness. It was pure human error reading the notice of hearing and I apologise for the delay today for all parties.

PN16

THE COMMISSIONER: Thank you. Ms McCarthy, I have marked the papers that have been provided to the Commission and if you have them in front of you I have marked your statement of facts as A1 and your bundle of documents as A2.

PN17

MS MCCARTHY: Okay, thank you.

PN18

THE COMMISSIONER: In relation to he respondent I have marked the respondent's documents as follows. The agreed statement of facts as R1, the respondent's response to the applicant's statement of facts as R2 and the respondent's statement of facts as exhibit R3. Having received those documents, Ms McCarthy, is there anything further you wish to add?

PN19

MS MCCARTHY: I assume has the Commissioner received our outline of submissions?

PN20

THE COMMISSIONER: It has, and the respondent's.

PN21

MS MCCARTHY: So that would be in the bundle?

PN22

THE COMMISSIONER: Yes.

PN23

MS MCCARTHY: Okay, no we have no further evidentiary - nothing further to submit.

PN24

THE COMMISSIONER: I presume you seek to rely upon those submissions?

PN25

MS MCCARTHY: We do.

PN26

THE COMMISSIONER: Thank you. Mr Dalton.

PN27

MR DALTON: If the Commission pleases. The first thing I wish to do is just to be clear on how the dispute should be characterised. I think we are now at a point where the parties are ad idem in relation to that may not have previously been the case. The notice of dispute that was filed on 10 December 2013 amounted to a complaint about non-payment of double time, overtime rates to an employee by the name of Gardside, Ms Gardside, and it cited the fact that she had worked on 13 October and she had been paid at the rate of single time and it was contended that she should have been paid at double time.

PN28

As you have seen from the statements of facts that have been exchanged between the parties, EBA9 was the enterprise agreement that applied to the parties, including Ms Gardside as at 13 October 2013 and a dispute about non-payment of double time rates overtime to her could not amount to a dispute over EBA10, notwithstanding that the provisions are the same, EBA10 has replaced EBA9, a dispute about Ms Gardside could not fall within clause 15. It seems that the ASU was cognisant of that issue and has sought to cast it more broadly as a dispute about the interpretation of the relevant provisions under EBA10, namely clause 18.5 and clause 44.2.1.

PN29

You will see from Qantas's outline of submissions dated 1 April that Qantas does not accept that a general dispute over the interpretation of those provisions in the abstract, that is to say in the absence of specific employee grievance or dispute would not amount to a dispute within the meaning of clause 15 of EBA10. That said, Qantas acknowledges that it's interpretation of these provisions will continue to be applied over the life of EBA10 and therefore there is the likelihood that there will be a grievance or dispute from employees or at least the ASU on behalf of one or more employees that EBA10 is not being applied correctly. In those circumstances I am instructed in the interests of resolving the dispute in a practical way that Qantas will not make the jurisdictional objection subject to two qualifications.

PN30

The first qualification is that the broader dispute of interpretation is to be determined by reference to employees - hypothetical employees - working under EBA10 in precisely the same circumstances as Ms Gardside, as summarised in the agreed statement of facts, it's marked in exhibit R1. The second qualification, and you'll see this in the submissions of Qantas, is that the relief that the ASU seeks or at least sought as stated in the notice of dispute, relief in the nature of back pay orders in respect of Ms Gardside or any other employees is not something Qantas would accept the Commission has jurisdiction to do. Indeed that would not be connected with the dispute that the parties now accept is the proper characterisation of the dispute which is the generalised interpretation issue.

PN31

THE COMMISSIONER: Those are the issues that you have outlined in 8 and 9 of your submission.

PN32

MR DALTON: Correct. Yes. Qantas's position in relation to the interpretation is set out at paragraph 3 of the written submission and I don't need to repeat it but you will see at its essence is a distinction between the circumstances in which a part time employee is entitled to overtime on the one hand, and on the other hand the rate of overtime that is to apply once that triggering circumstance occurs. In our respectful submission on a proper construction of clause 18.5 that sub-clause exhaustively deals with the former, namely the circumstances in which part time employees become entitled to receive overtime and in relation to the latter issue, namely the rates of overtime that are to apply once an entitlement is triggered, clause 18.5 expressly leaves room and refers to the EBA.

PN33

We acknowledge and accept that those words call upon clause 44 because clause 44 is the general overtime provision that includes prescription of the rates of overtime. So that is where in the EBA10 the rates of overtime are to be found and clause 18.5 calls upon that provision in that regard only. Clause 44 of its nature is a general provision because it applies to all workers who are covered by the enterprise agreement, namely full timers, part timers, day workers in respect of clause 44.1 and shift workers in respect of clause 44.2. In that sense clause 18.5 is a more specific provision because clause 18.5 plainly deals with the subject matter of overtime in respect of part time employees only. In my respectful submission the challenge for the ASU here is to show that clause 18.5 leaves room for clause 44.2.1B to apply to add an additional circumstance in which the entitlement to overtime arises for part time employees and for the reasons that I've set out in the written submission in my respectful submission that argument has to be rejected.

PN34

One of the main reasons why it has to be rejected is because its asking the Commission to apply an approach to construction that is contrary to a long established rule of construction, a rule of construction in respect of statutory interpretation and a rule that has been applied not only to the construction of awards but also to enterprise agreements. You will see that in the written submission I have quoted a decision of Justice Dean in Refrigerated Express Lines. I've got a copy of that case for the Commission and the ASU. Commissioner, at footnote 8 page 469 of the report is cited. It actually starts at the bottom of page 468, you will see there starting with the words, "As a matter of general construction," and then over the next page 469 down to about the 10th line ending with the words, "By encroaching on that subject matter." That is the quote that you'll see in the written submission.

PN35

Importantly when his Honour Justice Dean refers to repugnancy his Honour includes in that a circumstance where the general provision if held to be applicable to a particular subject matter would constitute a departure from that intention by encroaching on that subject matter. So what we say is that the relevant subject matter here is the circumstances in which a part time airline officer is entitled to overtime. The general provision in clause 44 deals with overtime generally, so it plainly covers that subject matter as well. But clause 18.5 we say covers that subject matter exhaustively for part timers. The relevant encroachment Commissioner is in clause 44.2.1B because the ASU want you to read that as specifying an additional circumstance in which a part time airline officer how was a shift worker will be entitled to overtime.

PN36

So it covers the same subject matter as clause 18.5.2. 18.5.2A in particular specifies the thresholds of hours over which you trigger an entitlement to overtime. Now, that applies to part timers, whether you're a day worker part timer or whether you're a shift worker part timer. So that is the subject matter. Those are the circumstances in which a part timer is entitled to overtime. On the ASUs construction one uses a general provision of the kind in clause 44 to encroach. The encroachment being 44.2.1B, they say that for part time shift workers here is another circumstance and in my respectful submission you can't do that. You are asking a general provision which is encroaching on the same subject matter to ask the specific provision to yield and allow room for it, whereas the long established rule of construction is it's the other way around, the specific provision is the one that's applied and the general provision must yield.

PN37

The other decision that I have quoted in the submission on this point is the decision of the high court, the judgement of Chief Justice Mason in (Indistinct) v. R. I will give you a copy of that, I don't propose to read it, but the quoted passage there says that this is commonsense. The ASU argument offends commonsense. At paragraph 17 in the first line I make the submission that as a matter of proper principle the Commission and its predecessors has followed this rule of statutory construction, not only in relation to the task of construing awards but also for enterprise agreements. Could I hand you a bundle of decisions, they are footnoted at footnote 10 and an additional decision in Prestige Property Services and a judgement of his Honour Justice Northrop in AMIEU v. Coles Supermarkets.

PN38

I don't propose to take you extensively to what is said in here, I just simply want to draw the lines to establish that this rule of statutory construction has been held by the federal court to be a rule that should be applied in construing awards and similarly the court has stated that the approach to construction of awards is to be applied in relation to construction of enterprise agreements. So then you end up with the approach to construing enterprise agreements needing to respect an established rule for construing a statute. Starting with the Metro Meat decision, his Honour Justice Keeley in that case explicitly applied this rule in the interpretation of an award. You will see that at pages 397 to 398. I don't seek to read any passages, I just ask you to note that, Commissioner.

PN39

Secondly, in the well known federal court decision in Short v. Hercus, his Honour Justice Burchett at page 520 of the report, the first paragraph that begins under the quote says, "The principles of statutory interpretation referred to are not inapplicable to an award which seeks in the way to legislate for the terms and conditions of employment of a number of persons engaged in a particular industry." His Honour refers to the George Bond case which has been cited in other cases in the federal court in this context. In that case at page - that decision is reported in 1929 AR NSW 498. Starting at page 503 Justice Street relevantly said, "Now speaking generally awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees as such and they have to be obeyed to the same extent as any other statutory enactment."

PN40

His Honour Justice Street went on to qualify that to the extent that there needs to be a commonsense approach to construing awards, bearing in mind that the drafters of the award are not necessarily legal people and there may be some infelicities in expression, et cetera, so one should be careful to avoid a too literal adherence to the strict technical meaning of the words, et cetera. That approach has also found favour with the full court of the federal court in Prestige Property Services. I've given you a copy of that, Commissioner. You will see at paragraph 107 of that judgement that the approach in George Bond was cited approvingly.

PN41

So far I've established that this rule applies to statutory interpretation and that the federal court has regarded that approach as applicable to the interpretation of awards. Can I finalise this trial by referring to the decision of Justice Northrop in the AMIEU v. Coles Supermarkets decision. Here his Honour at page 212 of the report, second paragraph which starts with the words, "The increase in the number of certified agreements." His Honour says four lines down, "Nevertheless certified agreements are to be construed, adopting the same methodology as that used in construing awards." His Honour then refers to the well known passage in the judgement of Justice Madgwick in Kucks v. CSR Ltd. It is also to be noted that the high court in AMCOR v. CFMEU [2005] HCA 10; [2005] 222 CLR 241 at paragraphs 96 and 129 Kirby J and Callinan J respectively, separate judgements, cite the Coles decision with approval.

PN42

So Commissioner, fundamentally our submission is that that rule of statutory construction is to be applied here and that defeats the ASUs argument. Could I now just respond to some of the ASUs points that they have raised in their submissions. At paragraph 14 of that submission it is put that clause 18.5 sets, "bare minimum" entitlements to overtime for part time airline officers. In my respectful submission that amounts to no more than a mere assertion. There is no textual basis for such a submission. There is nothing in the language of clause 18.5 or clause 18 generally that would support it. At paragraph 15 and in the first sentence of paragraph 25 the ASU seeks to make something of the fact that clause 18.5 does not make any distinction between part timers as day workers and part timers as shift workers.

PN43

In response to that I submit that pointing to this lack of distinction takes the ASU argument nowhere. Indeed as Qantas submits at paragraph 15 of its submission the lack of distinction in clause 18.5 between part time day workers and part time shift workers is a feature of clause 18.5 indicating its design to deal comprehensively with part timers on the relevant subject matter. That supports Qantas's argument, it doesn't detract from it. At paragraph 17 to 18 and at sub-paragraph 31C of the ASUs submission, the ASU argues that clause 44.2.1B must be read as applying only to part timers. Before I respond to that let me explain how that is put. The ASU says it can only have work to do in relation to part timers because if a full timer is allocated work other than on a rostered shift, it necessarily would follow that 44.2.1A would apply. That is it necessarily would follow that the hours would be outside of or in excess of ordinary hours.

PN44

If the premise of that argument were correct that would be an argument of substance because if it could be demonstrated that 44.2.1B could only apply to part timers that would tend to indicate that the parties to EBA10 intended it to have effect and thereby complement 18.5 on that subject matter as opposed to encroach. But Commissioner, the premise is wrong. It does not follow that if a full time employee is allocated work, hours of work that are other than a rostered shift that those hours are in excess of or outside ordinary hours. I can explain it by reference to two examples.

PN45

The first example is if the company unilaterally requires a full time employee to swap shifts. So instead of requiring that employee to do the Tuesday morning shift it requires the employee to do the Tuesday afternoon shift and doesn't do notice of that or gives less than 24 hours notice, let's say. That would be other than a rostered shift but the employee is not working any additional hours, even on that day. The second example is by reference to the ordinary hours prescription in clause 44 for full time employees - sorry, not 44, I think it's 41. yes, 41.5, it's page 37 on my copy of EBA10. Do you have that, Commissioner?

PN46

THE COMMISSIONER: I do.

PN47

MR DALTON: That's for shift work arrangements for airline officers. If you see 41.5.2, if you look at B you'll see that ordinary hours are not exceeded if they are 80 hours or less in 14 consecutive days. So if we consider the case of a full time shift worker and we consider a hypothetical example of Qantas requiring that person to work an additional shift that's not a rostered shift, that could still be ordinary hours because over the course of 14 days the employee could be working less than 80 hours. The requirement to work that additional shift could be accompanied by a direction that it's not necessary to work another shift. So we say that the circumstance in 44.2.1B that's applicable to all employees as a general prescription, subject to any specific provision such as 18.5 triggers overtime where effectively you have not been given proper notice of the shift, whether or not that exceeds or is outside of your ordinary hours over a cycle. So the premise of the ASUs argument is misplaced.

PN48

The last matter I wish to respond to is the submission that the ASU makes at paragraph 23. Here the union asserts that Qantas's position is that clause 18 exhaustively proscribes terms and conditions for part timers. Lest there be any doubt, Commissioner, can I say that that is not the position that is advanced by Qantas. Qantas is not saying that clause 18 is to be construed as having that effect. Qantas's argument is that clause 18.5 on the subject matter of overtime does have that effect in respect of the circumstances in which overtime entitlements are triggered. Those are the submissions of the respondent.

PN49

THE COMMISSIONER: Thank you, Mr Dalton. Ms McCarthy, do you want to respond?

PN50

MS MCCARTHY: Yes, thank you. I refer to our submissions and seek to rely on those in relation to our initial submissions. I would just like to address first the respondent's assertion that 44.2.1B would be triggered by someone working with less than not enough notice basically. So they've referred to clause 41.9, I draw attention to clause 41.9.1D in which refers to the 48 hours notice. So in the final line there it says that a shift worker who is required to work with less than 48 hours notice basically, we've paid for the shifts worked during the two day period for the rate at the rate of double time.

PN51

We would submit that this therefore provides an express entitlement and therefore any full time employee or any other employee would not need to rely on 44.2.1B in order to access that entitlement, so therefore the 44.2.1B we submit is clearly intended to capture employees described with reference to the agreed statement of facts where they've had that notice but it is outside of their roster, as was the case with Ms Gardside with reference to these circumstances. Without addressing the case law too much we would point to our case law as well as referred to in our submissions which draws the clear distinction between day worker and shift worker and where an agreement clearly contemplates two different classes of workers there needs to be a distinction drawn between the two. That leads to our assertion as outlined in our submissions that 18.5 provides the basis from which to work and that it is in fact 18.5 which is the general provision.

PN52

Our basis for this as outlined in our submissions which I'll touch on briefly is that it provides a list of circumstances in which a part time employee may be entitled to overtime. It has a few references there, 7.6 hours per day, 10 days per fortnight, but in this case there were contracted hours and it would have been impossible to get to five days per week basically. So it then expressly refers outside of 18.5 full rates which clearly intends that there is meant to be further information imported into 18.5 for the rates. So we would submit that it therefore is a general provision, not a specify one, whereas 44.2.1 is the specific provision given that it provides a clear distinction between if you are working these shifts and you are a shift worker which we would submit goes on top of being a part time employee you are entitled to these additional rates.

PN53

So 44.1.9.1 is also outside of 18.5 but Qantas has submitted that that should be imported into 18.5, despite no direct reference either. So on what basis would they say that 44.2.1B doesn't apply basically. It provides an express rate of double time in a specific circumstance. So therefore should be applied on top of the general provision of 18.5. I'll just refer to my notes for a moment. Just to confirm we do - to a certain extent we do agree with Qantas's assertion that this is no longer a specific claim for back pay for Ms Gardside, given circumstances have changed since we've made this application. We are seeking an express decision as outlined on the final page of our submissions as to the application of 18.5 in relation to external overtime provisions, speicfially 44.2.1.

PN54

In relation to Qantas's assertion that our submission that there is nothing in the language to make a distinction between day work and shift work, we would submit that this does provide a basis for assuming that that clause is meant to be the general one and therefore applied as a basis, if you like, rather than as a general submission given that people are employed as full time or part time as a general condition basically. You can swap between shift work and day work depending on circumstances and full time and part time as well. But the shift work is a more variable aspect of your employment and therefore would be a more specific. So any clause referring to shift work should be considered the specific one and should be considered in that context. I won't refer to the case law that was cited in too much detail but I believe that our submissions address what we would like to put forward and the determination that we are seeking. Are there any questions that I haven't address, Commissioner?

PN55

THE COMMISSIONER: No, thank you, Ms McCarthy. Mr Dalton?

PN56

MR DALTON: Commissioner, might I respond to one matter that wasn't the subject of the ASUs submissions and that is what to make of 41.9D. The submission that the ASU now makes on that implicitly would appear to acknowledge that if notice is given in accordance with that clause then it would constitute a rostered shift and therefore fall outside of the expression "other than a rostered shift" within the meaning of 44.2.1B. The difference between the overlap in 41.9.1D which proscribes a rate of double time where notice is not given, and 44.2.1B which proscribes double time for a shift worker who is given work than is otherwise on a rostered shift is that the prescription is exactly the same. So they are completely harmonious with each other.

PN57

The difficulty that the ASU has with its argument in respect of USB-clause 18.5 is that it's not the same. 18.5 sets the triggering circumstances and the ASU wants another circumstance to be added to that so at the heart of the dispute is how one resolves that lack of harmony between those two provisions and we say it's by reference to the established statutory rule of construction. If the Commission pleases.

PN58

THE COMMISSIONER: Thank you, Mr Dalton. I intend to reserve my decision in relation to this application. Can I thank you both for your submissions and various statements and the case law as set out. Thank you.

PN59

MR DALTON: Commissioner, just before we rise, there was one thing I forgot to mention. Can I make a minor correction to one paragraph in the written submission, there is a reference to a sub-clause that should be corrected. Paragraph 20, third line, there is a reference to sub-clause 44.2A applied to part time and it's got the word "day workers", that should read "shift workers". The same point applies for day workers but the reference would be sub-clause 44.1.1. Subject to that correction and clarification Commissioner - - -

PN60

THE COMMISSIONER: Just so I'm clear, Mr Dalton, the only change in paragraph 20 is the replacement of "day" with the word "shift"?

PN61

MR DALTON: Yes, and to clarify to the extent that point is also made in respect of part time day workers the sub-clause is 44.1.1.

PN62

THE COMMISSIONER: Thank you, Mr Dalton. This application is now adjourned.

<ADJOURNED INDEFINITELY [10.38AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S STATEMENT OF FACTS PN4
EXHIBIT #A2 BUNDLE OF DOCUMENTS INCLUDING CASES REFERRED TO PN4
EXHIBIT #R1 AGREED STATEMENT OF FACTS PN4
EXHIBIT #R2 RESPONDENT'S RESPONSE TO APPLICANT'S STATEMENT OF FACTS PN4
EXHIBIT #R3 RESPONDENT'S STATEMENT OF FACTS PN4