C2015/2517, Transcript of Proceedings [2015] FWCTrans 362 (16 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051935

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COMMISSIONER CAMBRIDGE

C2015/2517

s.739 - Application to deal with a dispute

The Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

and

Qantas Airways Limited

(C2015/2517)

Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9

Sydney

2.12 PM, MONDAY, 25 MAY 2015

PN1

THE COMMISSIONER: Good afternoon. I might just take the appearances in the matter, please.

PN2

MS S TAYLOR: If the Commission pleases, Taylor, initial S for the Australian Manufacturing Workers Union.

PN3

THE COMMISSIONER: Thank you.

PN4

MS J GHERJESTANI: Gherjestani, initial J, for the Australian Workers Union.

PN5

MR M MURPHY: Murphy, initial M, for the CEPU, Commissioner.

PN6

THE COMMISSIONER: Thank you.

PN7

MS S MILLEN: Thank you, Commissioner. If the Commission pleases, Millen, initial S and I seek to appear on the same basis as last time.

PN8

THE COMMISSIONER: Thank you. The matter is listed today for a report back. Who wants to go first?

PN9

MS GHERJESTANI: We can proceed, if the Commission pleases, first.

PN10

THE COMMISSIONER: Yes.

PN11

MS GHERJESTANI: As you suggested, Commissioner, we did meet with the company, we presented them our examples. We did not receive a positive response and for those reasons we would like the matter to be listed for arbitration because the employees in effect have not been getting paid the increased wages, and the longer we prolong this the more disadvantaged they would be.

PN12

THE COMMISSIONER: Does any of the other unions want to add to that report?

PN13

MR MURPHY: No.

PN14

MS TAYLOR: No, thank you, Commissioner.

PN15

THE COMMISSIONER: What does Qantas say?

PN16

MS MILLEN: Thank you, Commissioner. We did meet last Tuesday, which we discussed some of the examples that you had proposed that we explore following on from the conference beforehand. In that meeting, to the extent that we haven't received a positive response the parties aren't yet in agreement then I'll accept that that's where we're at but in terms of we're certainly not in a position, Commissioner, where we say conciliation is at an end. What we have asked, and this was proposed to the unions last week, is that the report back of today be adjourned for a period of approximately three weeks. There were matters raised in our meeting last Tuesday that we need to make further inquiries about of at least three people; two of which are currently overseas so we're unable to make those inquiries immediately. We think that that would be useful to have made those inquiries prior to any decision being made as to whether a further conciliation might be of use, Commissioner, including white-boarding issues that you have made - - -

PN17

THE COMMISSIONER: Well you'll notice the white-board, I wasn't sure what we were going to do today but we thought we'd better bring it in just in case.

PN18

MS MILLEN: And then make a decision at that time as to whether further conciliation might be the more appropriate course, a useful course, or whether it needs to be timetabled for arbitration. In essence, Commissioner, the union's position is that their construction is supported by the negotiations and they made reference to notes which we have not been provided with copies of. Those notes actually may help narrow the inquiries that we need to make but in essence, Commissioner, we need to make relevant inquiries of people who are present at the negotiations to help identify where we are at odds in terms of the negotiation evidence, and that will obviously - may or may not be relevant to the construction point that is obviously between the parties today.

PN19

THE COMMISSIONER: The people you want to consult with presumably were those - or they were involved in the negotiation or something, were they, and you need to clarify something?

PN20

MS MILLEN: That's correct, Commissioner. Matters were raised in last Tuesday's meeting that weren't raised at the conciliation on the week before, and the union's essential position, and they can correct me if I'm misunderstanding their position, is that the evidence that they will be bringing to the table in terms of arbitration includes evidence of negotiations, which they say support the construction that they're advancing. We obviously don't accept that, Commissioner, but we want to make the relevant inquiries of those people who were present at the negotiations before responding in full to those allegations. Indeed, we say that having made those inquiries, that will help assist in determining what is the more appropriate course; whether it's conciliation or arbitration.

PN21

THE COMMISSIONER: We did have real life examples that we ran through or you ran through when you met. Is that - - -

PN22

MS MILLEN: We were provided with a list of 12 examples, Commissioner. They were de-identified and they were examples that occurred in the first half of the year. So - - -

PN23

THE COMMISSIONER: Of this year - no, last year.

PN24

MS MILLEN: No, in terms of the union's construction of anniversary date. The anniversary date is falling either March, April or February. Obviously the situation might be very different in terms of examples in the latter half of the year. You will probably recall, Commissioner, this EBA9 commenced operation in August of 2013, but obviously there's some backdating that occurs to 1 January 2013, and we did raise as to whether the unions had any examples of employees whose anniversary dates on their construction of anniversary dates were falling in the second half of the year. We have also asked for whether or not the union would be prepared to disclose the actual identities of these employees, so that we can actually go and check the information that's been provided in these tables.

PN25

THE COMMISSIONER: These are circumstances where we see people get both the broad, general increment and then their old anniversary date in the lower level used as the basis to then move them again. Is that right?

PN26

MS MILLEN: I can't accept that that is what has occurred, Commissioner, but - - -

PN27

THE COMMISSIONER: But that's what it's endeavouring to show, isn't it?

PN28

MS MILLEN: That's what I think the union is endeavouring to show and what we would like to test is actually - we need the identities of the individuals to actually test well, did they actually progress in the manner intended and also if they did progress, why did they progress. There might be another reason as to why in a particular year there's essentially two increments in terms of two increases in pay and level.

PN29

MS GHERJESTANI: If I could reply back to some of the things that Ms Millen has said. In relation to the anniversary date being at the first - within the first six months of the - that's because I've spoken to our members, Qantas usually hires within that time period, they don't hire in the second batch. So most people's anniversary dates will fall within the first six months of the year.

PN30

In relation to Ms Millen saying that during last week's meeting it was the first time that the unions brought up the negotiations and the fact that this was - this issue was negotiated and agreed upon by the company during negotiations, we had brought that up with the company way before we even put a dispute application in. So the company were very well aware of what we were seeking and what our position was.

PN31

In relation to the identity of the employees, we did say to the company if you give us an undertaking we will provide you the identity of these employees. The company did not give us an undertaking but the worst case scenario, the company has details of all of these employees. They know which level which person sits on. They have more information that we do. We actually have to go to our members and ask them, whereas the company can just log online and see it all in their system.

PN32

If I could assist further, Commissioner, I've got examples if you'd like to see, which may assist.

PN33

THE COMMISSIONER: Right.

PN34

MS GHERJESTANI: I'll give you a copy. Thank you, Lidia. The first page just again reinforces our interpretation of the agreement. The second page is the table which shows the employees, instead of putting their names we've just put 1, 2, 3, numbered them. The anniversary date is the date they commenced at Qantas, we did not put the year but just the month. So the issue is in 2014, the employees that are coloured in red, they achieved the level increase that is paid in accordance with the EBA, which is related to the wage increase and they also received the level jump in accordance with their anniversary date.

PN35

As you can see within that batch of employees who started in March, only one employee was not given his level increase in 2015 in accordance with the anniversary date. The following pages just explain the table.

PN36

THE COMMISSIONER: So in effect your claim is to really make 6, 8, 9, 10 and 12 all do the same as the others?

PN37

MS GHERJESTANI: Yes, because under this EBA you get a level increase. If you look at the wage increase which is clause 8 of the EBA, it refers you to the table and the table has 2013 you get a jump, a level increase, it's related to your wage increase. 2014, you get a wage increase. 2015, you get a level jump. 2016, you get a wage increase. So one year it's a wage increase, one year it's a level jump. Now the company is saying you can't have both, you can only have one but imagine if this year was the wage increase, they could not turn around and say I'll give you the wage increase but not your level increase.

PN38

MS MILLEN: Commissioner, it may assist, we were provided with effectively the table last Tuesday, not with the additional documents, but it might assist, do you have the enterprise agreement in front of you?

PN39

THE COMMISSIONER: I think it was attached to the application.

PN40

MS MILLEN: Is that a complete copy?

PN41

MS GHERJESTANI: Yes.

PN42

THE COMMISSIONER: I'm pretty sure it's complete. Yes, I think I've got the lot.

PN43

MS MILLEN: This will explain why the identity of the individuals are important. If I could take you to page 92 of that agreement, Commissioner, and in particular 7(b), you'll see that's in total "completion of CASA Basics". You'll see that a trades employee - it reads:

PN44

A trades employee who successfully completes CASA Basics will receive a once off bonus payment of $100 for each unit obtained. This payment will not be used to calculate any other payment due to an employee.

PN45

Then the next paragraph:

PN46

On a one-off basis the trades employee employed in heavy or line maintenance who attains eight or more Basics will; a) be advanced one level -

PN47

and then there's an asterix:

PN48

But note the employees who obtain a quota level position other than by translation will not progress by an additional level -

PN49

and it goes on. Our point, Commissioner, is there may be many other explanations as to why certain employees have actually progressed more than one level in a particular year and one such example is the completion of CASA Basics, where the employee has actually obtained the relevant eight, and that has enabled them to progress further in that year. It's very important that we actually understand who these individuals are because it may very well be that the explanation for some or all of them are that they have obtained CASA Basics in the particular year that the union relies upon to support their broader case.

PN50

MS GHERJESTANI: We would not have - we're not of the view that the employees that we've listed received their level jumps because of clause 7(b). Again, the company says that we should identify, we'll definitely identify them if you can provide us an undertaking that you will not take adverse action and reverse them back a level. Furthermore, the company has all the employees' details. All they have to do is go to their system and they are able to see who is in which level and why they went to that level. They have access to more information than we do. I think we've provided them with more than enough of examples to show that the level increases should be applied twice.

PN51

THE COMMISSIONER: Obviously there's not been an agreement reached as a result of this, the question is whether or not if there's some further investigation there might be the prospect of there being some agreement reached. If you're correct, Ms Gherjestani, in that none of the employees numbered 1 to 5, number 7 and number 11, have obtained the sort of dual increase for some other factor, that might persuade Qantas that employees 6, 8, 9, 10, 12 and any others that are in that circumstance should be treated equitably and the same thing should happen to them irrespective of whether there is an entirely agreed view about what the words in the agreement document say. Is that possible?

PN52

MS MILLEN: Commissioner, we certainly on my instructions think there's benefit in - there is potential benefit in further conciliation, subject to the inquiries that we've made and subject to this information.

PN53

THE COMMISSIONER: This isn't a case where these things are mutually exclusive. I mean just to avoid the prospect of time getting too far away, the union can start to assemble its case at the same time as we anticipate further conciliation. It doesn't put Qantas to any trouble until we get to a point in time in any direction where you have to start attending to your case. But if you leave that point after any further anticipated conciliation, it seems to me the logical way to do it.

PN54

MS GHERJESTANI: We would support that.

PN55

MS MILLEN: Certainly, Commissioner, one way that it might be approached is that there remains outstanding, I suppose, the identification between the parties as to what the precise question to be arbitrated. The second issue is the numbers of employees that we're actually dealing with so - at each particular level, and those two preliminary matters I think both parties would benefit from those issues being identified by the union. That could run in tandem with our inquiries - - -

PN56

THE COMMISSIONER: I'm not sure that the number of employees could necessarily be identified by the unions because they're probably only reacting to those that come along and complain to them, I suppose.

PN57

MS MILLEN: Maybe not numbers, Commissioner, but levels.

PN58

THE COMMISSIONER: But in any event, that would be more a case of if there was a determination that the wording of the agreement should operate in the manner as asserted by the unions and then there was a need to tidy that up one way or the other, then we'd have to do a detailed exercise in looking at just what is that meaning, wouldn't we?

PN59

The words in the agreement shouldn't be influenced by the fact that there's 10 people that might benefit or 110 people that might benefit, should they? The words should be the words. I suppose what might be of more concern here was that the identification of those that have got it, they're worried that if they stick their hand up and admit to getting it that they'll lose it. Because they say well, that's one of the reasons they want to remain anonymous. The difficulty with that might be that if they were to lose it, it might be adverse action.

PN60

MS MILLEN: Ultimately - - -

PN61

THE COMMISSIONER: But it couldn't be if they weren't identified, you see.

PN62

MS MILLEN: Equally, it wouldn't be if they weren't entitled to it. For example, if it occurred by reason of payroll or other mistake.

PN63

THE COMMISSIONER: Yes.

PN64

MS GHERJESTANI: How can such a large number of employees be due to a payroll error. This is just a sample, Commissioner.

PN65

THE COMMISSIONER: I don't know. That's the sort of inquiry that Qantas is saying it needs to undertake, I understand that but - - -

PN66

MS GHERJESTANI: I just don't understand why they can't just access their system and find out how many - they have all of this. They have all of this.

PN67

THE COMMISSIONER: Yes.

PN68

MS MILLEN: It's not an easy exercise, Commissioner. I'm instructed there's 1300 employees covered by this agreement, so it's not a case of simply spending a couple of hours trying to work out those employees that may have progressed in this way and those employees that have not, and then working out what might have been the explanation for why certain employees progressed and didn't progress.

PN69

THE COMMISSIONER: I think that if there has been an application of this - that it's been inconsistent, that's the question. It would not be something that one would think would be removed simply because it's been now identified.

PN70

MS MILLEN: No, I think though the levels are quite helpful, Commissioner. You will recall in terms of the progression movements, that is time at level, that certain levels are just below quota and it changes on each year. I'll take you to that. So at 4(b).2.4. You will see from the first page - so table 7 in that clause, Commissioner. Essentially the Trades 12 is the level immediately below the quota controlled positions. That changes to - and then for table 8, which his from 1 January 2014 it changes to Trades 13 and then for 2015 it's Trades 14.

PN71

It would be useful to know whether the union is maintaining this argument as well in respect of those levels as well, because obviously you'll recall last week - or I think it was two weeks ago, Commissioner, we were saying that the relevance of the words that the union rely upon have to deal with quota and putting into quota. It would be at least beneficial in terms of trying to narrow the issues in dispute, whether the union is advancing their case in respect of all levels or some levels, and if it's some levels, which levels.

PN72

THE COMMISSIONER: I'm sure the union can take all of that on board or the unions can take all of that on board but my concern was more, if it was going to assist that, for instance, these employees, the 12 examples that are given here, if they were identified and then the question as to whether the separate increase was attributable to some other factor could be determined. If it was well then that's something that supports the position of Qantas. If it's not then it tends to - well, it assists the unions because the unions say well, in a practical sense it's being interpreted this way at least for a variety of employees. If in those circumstances then, and before there was any determination by the Commission, Qantas sought to remove that payment from those individuals that, I think, wouldn't be helpful.

PN73

MS MILLEN: I think, Commissioner, we're interested in the identity of these individuals primarily just to try and ascertain the reason for these increases, if they have in fact happened. If they have, as you've apprehended, there might be a number of reasons; one of which may be useful to us, one of which may be useful to the union, some of which may be useful to neither party.

PN74

Ultimately, in terms of the construction point what has transpired post the agreement as you'll be aware, Commissioner, is not relevant to the actual interpretation of the clause. But I think we're trying to deal with this at a practical level at conciliation in trying to work well who are we actually dealing with, how many are we dealing with and are there people who, for example - and dealing with the unions' construction, been affected for one year or are there groups that have been affected for two years. I think in the overall trying to resolve it, that's what we're looking for in terms of understanding this information.

PN75

THE COMMISSIONER: Yes, but in all of that what would be wrong with Qantas saying if the increase isn't attributable to some other factor, we wouldn't be making any - we wouldn't take any step to remove that, certainly unless and until the determination of arbitrated case was - and if you were held to be correct in your arbitrated case then presumably you'd have to think well now it's clear we've overpaid these people, how are we going to deal with that. It would be a case by case sort of proposition.

PN76

It just strikes me as being potentially, well, problematic if nothing else if - particularly if one of these individuals is identified. You find out that they've got the money by what you believe to be a mistake but it's still a question mark for the Commission, and then you decided to take it away, that I would think is something that would be, as I describe it, unhelpful in the whole process.

PN77

MS MILLEN: Commissioner, I can put your mind at ease in that respect. I'm instructed that there will be no intention on the part of Qantas to remove that pending - - -

PN78

THE COMMISSIONER: In those circumstances.

PN79

MS MILLEN: Yes, while the dispute is progressing before the Commission. That's - - -

PN80

THE COMMISSIONER: That might help the unions a little bit in terms of the disclosure of these individuals. That's been put on record now so that may help as you discuss this but it seems to me that what we've probably got to do is start the timetable and arbitration because the unions are getting a bit edgy about all that, give you an opportunity to make the - talk with these people that are overseas and perhaps have some further communication with the union once you've got some understanding about some of these questions a little clearer, and if then it's a view that perhaps we should have another conciliation we could even timetable that in the whole process. As I say, these things aren't mutually exclusive, we can still be conciliating while we're getting everything in order for an arbitration. I've done that plenty of times.

PN81

MS MILLEN: Commissioner, it might assist and obviously you may have a different view on this but one way of dealing with it, and I understand your point in terms of if we can't reach agreement then it's in the interests that we actually do progress this and timetable it for arbitration. One way that might be - and I don't know how long the union needs in terms of preparing their initial evidence but one way of dealing with it might be that if, for example, the union needs two or three weeks, that's all we were proposing by way of an adjournment for the report back. That the report back be effectively listed at the same time the unions' material is due to be filed and served. Then at the time of the report back, we would be proposing that basically a further conciliation occur at that time and in the event that that conciliation is unsuccessful then the remaining orders can be programmed.

PN82

I don't know, Commissioner, how long it will take us to prepare our material because we need to make the inquiries and it's not yet clear to us the volume of evidence that the union are proposing to rely on, particularly in terms of the negotiation evidence. It hasn't been made - we know at a high level what the unions says occurred during the negotiations and what they say was agreed between the parties, but as to what the nature of those discussions were, when they occurred, over how many meetings, who was involved from Qantas, we don't have any oversight at that stage. I just can't - I'm not in a position, Commissioner, to tell you how long that might be.

PN83

THE COMMISSIONER: I'm not sure about the relevance of all that given what we've got now is the 10 golden rules from Golden Cockerel.

PN84

MS MILLEN: As I understand the unions' case is they will be saying there was a meeting of the minds between the parties, as to what these - - -

PN85

THE COMMISSIONER: Before we get to that we have to establish that there isn't a plain and ordinary meaning that can be derived from the document.

PN86

MS MILLEN: I understand that, Commissioner. I suppose what I'm apprehending is I don't know how long we might need in order to prepare our case. It will depend in part upon the unions' case and the relevance, if any, they place upon the negotiation evidence.

PN87

THE COMMISSIONER: I understand all that. Let's just then contemplate the sort of timeframe here. It seems that at least we've got a broad understanding that we might be able to schedule a further report back and also a date by which the unions would put their material on. How that synchronises or doesn't synchronise is something that I probably need to hear from the unions about.

PN88

MS GHERJESTANI: I think Qantas has said that they would like three weeks to talk with the relevant people who negotiated and to gather materials.

PN89

THE COMMISSIONER: Yes.

PN90

MS GHERJESTANI: So that should be sufficient if we have three weeks from now to put all our evidence together and then they can have a further two or three weeks to reply back to that evidence, because by that time as they said, they need three weeks, by that time they should have their sufficient material. They're well aware of what we're relying on and what our view and interpretation is because we've made it known to them in a couple of meetings as well as conversations that we've had with the company.

PN91

THE COMMISSIONER: Now you've got to formalise it in the form of the nature of the relief sought. So we need a date by which you'll have all your witness statements in and an outline of submissions, together with the nature of the relief sought - it might be in the form of a draft order or something.

PN92

MS GHERJESTANI: Yes.

PN93

THE COMMISSIONER: So that gets everything galvanised so to speak. It starts to put everything down clearly in focus. Let's find an agreeable date for that to occur and perhaps coincide that with the further report back. That seems to be the general view.

PN94

MS TAYLOR: Commissioner, 15 June would be three weeks from today and we would see that as an appropriate date for our evidence. However, from what I'm hearing on the other side, it's a bit of a fishing exercise. This dispute's been going on for quite some time and our members are keen for it to proceed. Qantas has continually said our interpretation of the agreement is not how the agreement is determined. Regardless of who's got which level jump and did they get it in March or April, or was it one or two and did the person have a CASA increase as well, they dispute the interpretation of the agreement. To that extent, we would also seek in this programming dates which Qantas as to lay on its material and a hearing date to be set - for us to reply, a short period for reply and then a hearing date.

PN95

THE COMMISSIONER: 15 June is not suitable from my perspective but we could do it the following Monday, 22 June. If that's the parties wanted. Are the unions going to file evidence and so forth separately or will it be done collectively?

PN96

MS TAYLOR: Together?

PN97

MS GHERJESTANI: Yes, we'll do it collectively.

PN98

THE COMMISSIONER: We'll have a composite set of witness statements and an outline of submissions which will be under the heading of all of the three applicants. That will make it easier for everyone, I don't think we want people just repeating themselves. We just did this in the waterfront recently and the MUA stands up and it says the same thing as (indistinct) just said and then the AMIU stands up and says the same thing again, and you wonder why you're doing it. So I think we can avoid that.

PN99

MS MILLEN: As part of that material, Commissioner, could we also ask that the unions identify the question to be arbitrated?

PN100

THE COMMISSIONER: The direction will contain all evidence, this will be by 22 June. So all the evidentiary material from the applicants together with an outline of submissions and a document which particularises the relief sought. Presumably in the form of a draft order or draft determination of some description. So it is clearly the case of this is the answer that we want, this is how we see the Commission determining the matter. As I say that's often in the form of a draft order. That material is to be filed and served by 22 June and we can schedule the further report back for that day, if that's convenient.

PN101

MS GHERJESTANI: Yes.

PN102

THE COMMISSIONER: 10 am on the 22nd for the further report back. Then if we fix a date about four weeks after that for Qantas to put its material on, that should be ample time I would have thought.

PN103

MS GHERJESTANI: Yes.

PN104

MS MILLEN: Would it be possible to have 27 July, Commissioner?

PN105

THE COMMISSIONER: 27 July. We'll issue a direction which says that Qantas is then to file and serve all its evidence and an outline of submissions and if it proposes an alternative determination, other than the matter be dismissed, that should also be included but often that's all that it is that the respondent seeks. That material is to be filed and served by close of business on 27 July. We say a two week period for anything in response from the unions. The unions' material in reply to be filed and served by close of business on 10 August. How complicated is this, is it a one day matter?

PN106

MS TAYLOR: I believe it could be dealt with in a day, Commissioner.

PN107

THE COMMISSIONER: It's hard to guess at this stage, you don't know how many witness statements are coming in from each side.

PN108

MS GHERJESTANI: Two days at most.

PN109

MR MURPHY: Commissioner, for us the witness statements are largely a matter of swearing the witness and giving their evidence and cross-examination surely wouldn't be too complex.

PN110

THE COMMISSIONER: What about 13 and 14 August? How are people placed for that so that we don't lose the dates?

PN111

MS GHERJESTANI: Sir, 10 August is Qantas reply - no, our reply back.

PN112

THE COMMISSIONER: It's only later in that same week but they're the next days that I've got free.

PN113

MS MILLEN: Do you have the 15th available as well, Commissioner?

PN114

THE COMMISSIONER: That's a Saturday. I suppose I do. It depends who's playing football.

PN115

MS MILLEN: No, what I was going to propose, Commissioner, is we just - we don't know the scope of the number of witnesses and that's really going to dictate - - -

PN116

THE COMMISSIONER: I know, it's a bit risky. I can't flow it over into the next week because that's an unfair dismissal roster week. So let's put down 13, 14. If this - as the material starts coming in - look, I'm ever the optimist. You might get your response and we find the matter settling but we'll plan for the worst and hope for the best. If this material starts to come in and either side believes the two days is just not going to be sufficient and you want a reconsideration of all of this, then a simple request and even by telephone or something, we can try and organise that. These things aren't so fixed that we can't change them if there's a valid reason to do so.

PN117

MS TAYLOR: Just a word of caution from the unions in relation to that, we need to check with our witnesses that they will be available on 13 and 14 August.

PN118

THE COMMISSIONER: Similarly, Qantas will have to do the same. Like I say, we try to put these things together but sometimes the best laid plans don't work out for whatever reason. Let's secure 13 and 14 August for arbitration at this stage, see how we go. We've got a bit of time between now and then. 10 am on each day, 13 and 14 August. We'll send a notice of listing out for those two days and those directions that we've just made but of course we'll be at the report back on the 22nd. So if there's to be no success in terms of conciliated resolution of the matter and someone thinks that the programming needs to be reconfigured, well we can start to deal with that on 22 June if we have to.

PN119

MS MILLEN: One thing that has slipped my mind, Commissioner, and I apologise for raising this late is the issue of permission.

PN120

THE COMMISSIONER: Yes.

PN121

MS MILLEN: It would probably be useful that that be programmed if in fact the unions still persist with their - - -

PN122

THE COMMISSIONER: I think what we'll - we'll have to anticipate that that will need to be woven into your material. If you're going to take the representational point - - -

PN123

MS GHERJESTANI: Yes.

PN124

THE COMMISSIONER: - - - you'd need to identify that. That might need to be the subject of a separate proceeding to deal with that in the intervening period. Because this is unusual and this is this question of what I've described as the Qantas clause and whether that is really something that the parties want to traverse needs to be given some serious thought, I think.

PN125

MS TAYLOR: Commissioner, we discussed that prior to coming in and because we're very keen to come to a resolution on the particular issue, we choose not to push that particular matter at this time. We do not resile from our position but we do not push it at this time.

PN126

MS GHERJESTANI: It's just a matter of timing.

PN127

MS TAYLOR: Commissioner, for abundant caution and for the ease of our members, particularly the 12 on the list, is it possible to weave into directions the undertaking by Qantas, that there'll be no - - -

PN128

MS GHERJESTANI: Adverse action.

PN129

MS TAYLOR: Well not adverse action but there'll be no action in relation to the members that we have identified in relation to their level increase prior to this matter being settled.

PN130

THE COMMISSIONER: It won't go into the directions. I will order a copy of the transcript and you will see what was said on the transcript today and everyone will know what that is and I think we're all of a similar understanding about that. That shouldn't trouble anyone, I don't think.

PN131

On the question of permission, well that's good, that won't muddy the waters and perhaps in view of that I'm prepared to indicate that I think there's sufficient complexity in the matter that it would be assisted if permission for the respondent at least and if necessary any one of the applicants to be represented by a lawyer or paid agent was provided for. I think that the relevant requirements of section 596 of the Act are met in the circumstances and we don't need to trouble ourselves about testing that clause, I don't think. It might be more a matter for the next round of negotiations.

PN132

I think we've got ourselves with broadly under - after all of that, I think we've got it on a fairly well established pathway that we're going to move down. Most significantly, 22 June is further report back and hopefully things might start to become a bit clearer from that point onwards. Is there anything else we need to do at this stage in the matters? No?

PN133

MS MILLEN: No, Commissioner.

PN134

THE COMMISSIONER: Very well, on that basis the proceedings now stand adjourned.

ADJOURNED INDEFINITELY [2.53 PM]