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Fair Work Commission Transcripts |
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052400
COMMISSIONER HAMPTON
C2015/3061
s.739 - Application to deal with a dispute
Mr Paul Field
and
Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations
(C2015/3061)
Royal Flying Doctor Service Central Operations Pilots Agreement 2014
Adelaide
10.09 AM, MONDAY, 7 SEPTEMBER 2015
PN1
THE COMMISSIONER: Yes. Good morning all. Please be seated. I'll take the appearances.
PN2
MR A MOLNAR: Good morning, Commissioner. My name is Molnar, initial A, and I appear with my colleague, Kelly, initial D, and we appear for the AFAP.
PN3
THE COMMISSIONER: Yes. Thank you, Mr Molnar.
PN4
MR S DASAN: If it pleases the Commission, Dasan, S, appearing for the AFAP and with me is Ms Virginia Liu.
PN5
THE COMMISSIONER: Yes. Thank you, Mr Dasan. And I ‑ ‑ ‑
PN6
MR DASAN: Commissioner, if I may, I'm going to try to seek to keep Mr Tony Vaughan in the room as my instructor while Mr Docking actually exits. But Mr Vaughan will also be giving evidence later in the matter.
PN7
THE COMMISSIONER: All right. Is there any objection to that course of action?
PN8
MR MOLNAR: No, no objection.
PN9
THE COMMISSIONER: Very well. All right. Are there any other housekeeping matters the parties want to raise with me?
PN10
MR MOLNAR: No, not from my end.
PN11
THE COMMISSIONER: All right. Well, just before we start, Mr Dasan, I assume, because it's not mentioned, that the RFDS accepts that the Commission has the jurisdiction to determine the dispute?
PN12
MR DASAN: Yes, it does.
PN13
THE COMMISSIONER: All right. Secondly, this is a question for both parties. In terms of the factual background of the circumstances, how they appear, I think at points 8 and 9 of the applicant's outline and 4, 5 and 6 of the respondent's outline, do I take it that there is no dispute about the facts, at least as far as those paragraphs are concerned?
PN14
MR MOLNAR: My understanding that there's no dispute.
PN15
THE COMMISSIONER: Thank you.
PN16
MR DASAN: None, sir.
PN17
THE COMMISSIONER: All right. Can I ask, in that context, how was the day, the originally scheduled grey day, treated? How was it ultimately treated?
PN18
MR MOLNAR: It became a personal leave day.
PN19
THE COMMISSIONER: Right.
PN20
MR MOLNAR: Which, under our argument, shouldn't be the case because a grey day should always remain a grey day once it's been rostered.
PN21
THE COMMISSIONER: All right.
PN22
MR DASAN: Well, if I may, Commissioner, on that point, we probably will take Mr Remilton through his evidence in relation to how that was treated, because Mr Remilton was ultimately the person that made the call in relation to how that was treated for the purposes of the roster, and there seems to be a little bit of inconsistency as to how that was treated; about why it became a personal leave day, and which day became the grey day, and which day became the personal leave day, so it is something that we would probably put to Mr Remilton in cross-examination.
PN23
THE COMMISSIONER: All right. Well, obviously not going to resolve it now.
PN24
MR DASAN: Yes. We're not going to resolve it. No.
PN25
THE COMMISSIONER: But both parties are on notice that it's something that I want to know the answer to.
PN26
MR DASAN: Yes. I mean, we don't have the answer to the thing.
PN27
THE COMMISSIONER: Okay.
PN28
MR DASAN: I suspect that only Mr Remilton will have that.
PN29
THE COMMISSIONER: All right. Look, and thirdly, are there other circumstances where the grey day changes after the roster is issued, either in practice or arising from your respective interpretations. Now, I'm after an immediate answer to that question but by the end of the day I want to know whether or not either party thinks there are other circumstances where a schedule grey day changes after the roster is issued.
PN30
MR DASAN: Yes.
PN31
THE COMMISSIONER: Is it either in practice of arising from your respective approaches to the agreement?
PN32
MR DASAN: Yes, sir.
PN33
THE COMMISSIONER: All right. Well, then I think we're ready to kick off. Mr Molnar?
PN34
MR MOLNAR: Thank you, Commissioner. The AFAP has already filed outline of submissions.
PN35
THE COMMISSIONER: Yes.
PN36
MR MOLNAR: And I won't go any further than what's contained in those submissions, so if I could tender those.
THE COMMISSIONER: Yes. I'll mark those. They're not strictly evidence but I will mark what's described as the applicant's outline of submissions, and mark that as exhibit A1.
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS
PN38
MR MOLNAR: Which I will now call Phil Remilton as my first witness.
THE COMMISSIONER: Yes. Have Mr Remilton sworn for us.
<PHILIP HENRY REMILTON, SWORN [10.14 AM]
EXAMINATION-IN-CHIEF BY MR MOLNAR [10.14 AM]
PN40
THE ASSOCIATE: State your full name please?‑‑‑Philip Henry Remilton.
PN41
Your address?‑‑‑(Address supplied)
PN42
And your occupation?‑‑‑Senior base pilot.
PN43
MR MOLNAR: Mr Remilton, have you prepared a witness statement for these proceedings?‑‑‑I have.
PN44
And that witness statement is the one before you?‑‑‑Correct.
PN45
And it's three pages long?‑‑‑Yes.
PN46
And it has eight exhibits attached to it, or attachments?‑‑‑I believe so.
PN47
Right. Is there anything that you wish to correct or amend in that witness statement?‑‑‑Just paragraph numbered 13. The clause that ended up in the agreement isn't the one that was agreed to in the meeting number 9, I believe it was.
PN48
Can you just explain that a bit further?‑‑‑Meeting 6, I think it was, had clauses put by both the RFDS and the AFAP for the definition of a grey day, which was inserted in the definition of the draft EBA which was then agreed in meeting number 9 and it's stated in the drafted EBA the whole way through until the October version. And then the November version changed and the initial work completed was put in force at 8.2.
PN49
Perhaps it's better to get it in evidence-in-chief. Can I tender that witness statement.
PN50
THE COMMISSIONER: With the attachments?
PN51
MR MOLNAR: With the attachments.
PN52
THE COMMISSIONER: No objection?
*** PHILIP HENRY REMILTON XN MR MOLNAR
PN53
MR DASAN: No objection, sir.
THE COMMISSIONER: Very well. The statement of Mr Remilton plus all the attachments will be admitted and marked Exhibit A2.
EXHIBIT #A2 WITNESS STATEMENT OF PHILIP HENRY REMILTON
PN55
MR MOLNAR: Sorry, if I could take you to paragraph 13. Are you saying that the grey day clause agreed to by the parties is not the clause that is contained in the agreement?‑‑‑Correct.
PN56
And why isn't it the one agreed to?‑‑‑Because the second paragraph which became 8.2 ‑ ‑ ‑
PN57
Yes?‑‑‑ ‑ ‑ ‑contains the word completed that the original that we agreed to did not.
PN58
Right. So if I can take you to page 84 of your witness statement. Apologies, sorry, page 117 of your statement. And these are the minutes of one of the negotiation meetings?‑‑‑Correct.
PN59
If you look down to the clause proposed by the RFDS on the second paragraph, that doesn't include the word "completed" does it?‑‑‑Correct.
PN60
No. That's what you were saying before?‑‑‑Yes. Yes.
PN61
And you're saying that that's the clause that you agreed to?‑‑‑Yes, that's the clause that ended up in the draft EBA after we agreed to it in meeting number 9.
PN62
But it isn't the clause that ended up in the final EBA?‑‑‑Correct.
PN63
Can you explain what you think is the reason why that's the case?‑‑‑Well, the October draft EBA had this in it as we agreed to it. The November one had a different one with some additional clauses, and then we got a letter from Mr Dasan to yourself in December that stated they'd honour the original draft one and I presumed it had gone back to the original agreed definition.
*** PHILIP HENRY REMILTON XN MR MOLNAR
PN64
No further questions.
THE COMMISSIONER: Thank you. Mr Dasan?
CROSS-EXAMINATION BY MR DASAN [10.19 AM]
PN66
MR DASAN: Thank you. Mr Remilton, from your knowledge, how long did the negotiations go on for in relation to trying to get this particular enterprise agreement out, do you know?‑‑‑Nineteen 20 months, something like that. Eighteen 19.
PN67
Eighteen 19 months?‑‑‑We started in August or September and they finished, what, March this ‑ ‑ ‑
PN68
So September 2013?‑‑‑What are we now 2015?
PN69
Be about right?‑‑‑Fourteen yes, 13. Yes.
PN70
Right. Coming back to your statement in relation to rosters, you are currently the senior base pilot at Port Augusta?‑‑‑Correct.
PN71
And part of your job is to make sure that the rosters get completed insofar as the way they get structured as well as who actually fills the slots on the roster?‑‑‑The structure is predetermined by what was previously agreed before I was even in Port Augusta with management.
PN72
Okay?‑‑‑I'm just basically putting annual leave and personal leave and whatever else occurs on a day-to-day and ongoing basis into the standard roster cycle.
PN73
Into the standard roster cycle. Okay. Can we come back to the first part of the answer you've just given about the rosters. So, as you've just put to us, to the Commission, that the structures of the rosters are pre-agreed?‑‑‑Yes.
PN74
In relation to how it appears at each of the bases?‑‑‑Yes.
PN75
That's your understanding?‑‑‑Yes.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN76
In relation to the rosters, and the structure of the overall roster as it appears, how does one go about changing the structure of the roster?‑‑‑It would be a roster review process that would then be agreed by Mr Docking as GM of Aviation Services, the chief pilot, and the majority of pilots at the base.
PN77
If you look at your statement on the attachment the first attachment, I think it's an enterprise bargaining agreement, isn't it?‑‑‑Correct. That's the one that we're working under.
PN78
Can you take yourselves to clause 16 of that copy of the enterprise bargaining agreement, please. Can you just familiarise yourself with that process. Okay. In relation to clause 16, once a proposal to change the roster is made what is the decision making process that has to happen from that point on? By that I mean, do they need to be put to a vote?‑‑‑Which change of a roster are you referring to?
PN79
Of the structure of the roster at each of the bases?‑‑‑Correct. It goes to a vote of the majority of the well, the line pilots have to vote on it, and it's already been agreed by the chief pilot and the GM of Aviation Services.
PN80
Okay. So by the time the GM of Aviation Services, the chief pilot agree then it's put for a vote and then the pilots vote on the change of the structure, right?‑‑‑Correct.
PN81
Okay. Can you remember whether there were any differences between that current clause and the clause that was there the previous agreement as to who could vote?‑‑‑I believe it was 16.22 got re-worded.
PN82
Right?‑‑‑Basically to change it from the GM of Aviation Services, the chief pilot and the majority that were and all the line pilots inclusive of the senior base pilot basically getting a vote and the majority ruling in the change.
PN83
Right. So ‑ ‑ ‑?‑‑‑To now needing a majority of the line pilots inclusive of the senior base pilot.
PN84
Okay?‑‑‑The majority to change it.
PN85
And who lost that other vote there? Who no longer had to vote?‑‑‑Everyone still got a vote.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN86
What about the chief pilot or the manager, Aviation Services, who was then ‑ ‑ ‑?‑‑‑They've agreed to it before it goes to a vote.
PN87
Right. But in the actual vote, in previous times I'll withdraw the question and come back. Who was the previous chief pilot?‑‑‑Allan Benn.
PN88
Allan Benn. Did Mr Benn have a vote prior to this agreement?‑‑‑Yes, he would have.
PN89
Yes. You have been involved in the negotiations all the way through, haven't you?‑‑‑Correct.
PN90
Right. Can you remember an argument being had about whether Mr Benn should have had a vote for a change in rosters?‑‑‑I stand corrected, but not that I recall.
PN91
All right. But if I was to put to you that both the pilots and the AFAP raised an objection to Mr Benn having a vote, can you remember such an argument actually occurring?‑‑‑There may have been some discussion around it.
PN92
Right?‑‑‑I'm afraid I don't recall.
PN93
You cannot recall. So you can't possibly recall as to why the chief pilot, he was no longer having a vote, not pre-agreeing before it came to a vote, but no longer having a vote during the change of the roster, as to why clause 16 was changed that way?‑‑‑No, I know why they wanted the change.
PN94
Yes?‑‑‑But I ‑ ‑ ‑
PN95
Who wanted the change, Mr Remilton?‑‑‑Well, it came out of the last change to the Alice Springs roster.
PN96
Right. And, so, let's take that a bit further. So the purpose of not having the chief pilot vote was to achieve what purpose?‑‑‑That he generally didn't work at the base so therefore the pilots at the base felt like they should have the say on what their roster is without someone who doesn't work there.
PN97
Okay?‑‑‑Having a potentially deciding vote.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN98
But in Mr Benn's day, do you remember Mr Benn flying from time to time?‑‑‑He did from time to time.
PN99
Right. So the argument then, if you remember it, was that Mr Benn voted because he flew from time to time, not on a regular basis, but he flew?‑‑‑He did occasionally.
PN100
Right. So if I put to you that clause 16 changed by virtue of the fact that the chief pilot no longer had to vote, that was the immediate change in clause 16, wasn't it?‑‑‑Well, both the chief pilot and the GM of Aviation Services.
PN101
Correct. Being that, if I put to you that the GM, Aviation Services may have flown the plane from time to time, not that Mr Docking flies any more, but if he was to fly in the old days he would have had a vote, wouldn't he?‑‑‑Under the previous EBA he would have.
PN102
Correct. So under this EBA neither the chief pilot or the manager, Aviation Services would have had a vote in relation to a change of a roster at any of the bases?‑‑‑No, but they've already agreed to it.
PN103
No, that wasn't the question, Mr Remilton. The question is did they have a vote as a pilot?‑‑‑No, they don't have a vote.
PN104
They don't?‑‑‑No.
PN105
Okay. Regardless of whether they fly or not; correct? Yes or no?‑‑‑Yes, well, it doesn't matter if they fly or not.
PN106
No, they don't have a vote?‑‑‑Not under this EBA.
PN107
Right. So that is the structure of the EBA and that's the structure of the roster changes under clause 16, isn't it? Once a structure is set it's set until one of the until a proposal comes up and the majority of pilots actually agree to the changes; is that right?‑‑‑Correct.
PN108
Okay. Mr Remilton if, in fact, there is a dispute about no, let's not call it a dispute - if a pilot wanted a change to a particular roster, if they were sick or they had annual leave or bereavement leave, who would they go see to change a roster?‑‑‑The senior base pilot.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN109
Senior base pilot. So in the case of Port Augusta that would be you, wouldn't it?‑‑‑At the present time. Yes.
PN110
Right. So if someone was to call in sick, what would you do in relation to if that person couldn't fly? So if someone called you today and said, "I am ill I can't fly tomorrow on my roster", what would you then do, sir?‑‑‑Try and find someone else who's available on the roster to cover the shift.
PN111
Yes. So when a change like that happens, you don't see that as a structural change to the roster, do you?‑‑‑No, it's a change to fulfil the rostering shortfall.
PN112
To fulfil the roster. Right. So that's an operational change to the roster; is it not?‑‑‑I guess you'd call it that. Yes.
PN113
Yes?‑‑‑It's a change to ensure to the service continues.
PN114
So it's not a structural change to the roster, it's an operational change to the roster; would you agree to that?‑‑‑Yes.
PN115
Okay. And you would say, as a senior base pilot, how often would that happen when somebody says that they're, you know, either ill or they've gone on bereavement leave or some emergency comes up. How often would that happen in relation to the Port Augusta base where you are based?‑‑‑I can't put a number on that for you because there's some weeks where there's none and there's weeks like two weeks ago where I had 12 personal leave days in one week, so it's totally random.
PN116
Right. But it's random, isn't it? So for operational reasons your job is fill the hole where they appear?‑‑‑Correct, because unfortunately I haven't been able to schedule sick leave.
PN117
Right. So going back to the structure of the overall roster, people are rostered as though, unless they have preplanned long service leave or annual leave, people are rostered as though they will turn up for work when required under the structure of the immediate roster; is it not?‑‑‑Correct.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN118
Right. Leaving clause 16 alone, let's go back to clause 8, which deals with grey days. Mr Remilton, can you tell me, in your words, what's the definition of a grey day?‑‑‑As it stands there, it's what we agreed to. Would you like me to read it or ‑ ‑ ‑
PN119
So what you agreed to in clause 8 is also the current agreement?‑‑‑Well, part of the one we completed in 8.2, yes.
PN120
Okay. Was there a definition or a clause dealing with grey days in the previous agreement?‑‑‑No, there was not.
PN121
There was not. Did grey days actually occur during the period covered by the previous agreement?‑‑‑Yes, they did.
PN122
How did that operate? Do you remember?‑‑‑They were put in the roster and they just sat there.
PN123
They sat there as an operational change from time to time?‑‑‑No, I'm not aware of anyone getting a grey day changed previously.
PN124
You're not aware of anyone getting a grey day changed?‑‑‑Until this EBA came into force.
PN125
Until the EBA came into force. But there were no rules governing grey days as such, were there, under the previous agreement, or any other agreement prior to that?‑‑‑Not that I'm aware of.
PN126
Okay. So effectively your job, if someone couldn't work, on a day before a grey day, was for you to find a replacement, wasn't it?‑‑‑Correct.
PN127
And similarly if you couldn't find a pilot would you ever call on anyone on a grey day to come in, if they didn't work it previously?‑‑‑I may have rung a part-time pilot, but I ‑ ‑ ‑
PN128
You're not sure?‑‑‑Without going back to the roster and seeing what happened.
PN129
Okay. Let me come back a step. When did this grey day come into operation, Mr Remilton?‑‑‑Under this one or the previous one or just in general or?
PN130
Just in general?‑‑‑Any shift that precedes an RDO that may or does finish after 22:00.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN131
Right. So if I gave you this as an example, tell me whether that's how you see it operate. If you look at a Thursday, Friday, Saturday example?‑‑‑Mm-hm.
PN132
On my five day roster if I work past 22:00 hours on the Thursday and I had an RDO on the Saturday then the Friday would be a grey day, wouldn't it?‑‑‑Correct.
PN133
Right. So if, in fact, I didn't work sorry, let me withdraw that. Why is a grey day granted?‑‑‑When there is a duty period that happens that goes past 22:00, or there is a rostered on-call period that is rostered to go past 22:00.
PN134
Okay. So let's not work in isolation, let's look back, in the flying profession, right, why are grey days made available both in the roster and, you know, in why are grey days granted?‑‑‑As a day off under the CASA flight and duty rules so 48 is between starts at 10 o'clock the day before an RDO or it's not an RDO.
PN135
Right. So effectively and where does those rules come from, Mr Remilton, do you know?‑‑‑Out of CO48 on the flight and duty exemption.
PN136
CO48. And the exemptions that are granted to the Royal Flying Doctors?‑‑‑Well, any emergency services operator. Yes.
PN137
Right. And effectively those parts of CO48 deal with flight management of the ‑ ‑ ‑?‑‑‑It's a set of rules to try and ensure people aren't fatigued. Yes.
PN138
Correct. And so, in other words, if you fly X number of hours, there's an expectation that you will have a break at some stage, isn't it? That's what CO48 is there to monitor the number of hours that a pilot actually flies or is in operations in the air?‑‑‑Both flight time and duty time.
PN139
Flight time and duty time. But it's mainly to do with the number of hours a pilot flies, isn't it?‑‑‑It's generally more restrictive on duty hours.
PN140
Right. So do you know the number of duty hours before a pilot needs to be given a break?‑‑‑There's no limit provided they don't exceed 90 in 14 days.
PN141
Correct. Okay. So if a pilot does not fly on the day preceding a grey day let me rephrase that does a pilot, who has an RDO, on the example we used earlier on, on the same day, got an RDO on a Saturday, if they work a day shift on the Thursday would they get a grey day on the Friday?‑‑‑No.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN142
They don't?‑‑‑Unless they majorly overrun the end of the shift.
PN143
Okay. So this applies to those pilots that are rostered or do work past 22:00, isn't it? So basically the night shift?‑‑‑Afternoon, evening or a night shift. Yes.
PN144
Afternoon, evening or night shift, yes, that finishes on or after 22:00 hours?‑‑‑After 22:00, yes.
PN145
Okay. So if somebody had gone off on annual leave, they'd applied and been granted annual leave, would they actually get a grey day? How would that be counted? How would a grey day be counted on a roster if, in fact, with the reword they're under, under clause 16 of the overall roster is set so I take it that grey days are a recurring event, because of the way the structure of the overall roster, isn't it? There'd be grey days set within the overall structure of the roster?‑‑‑Correct.
PN146
So over a period leading up to the roster, if a person applied for annual leave, would they get the grey day in the middle of the annual leave?‑‑‑No, because their annual leave is required to be taken in blocks of seven days or more so it's the entire week, Monday to Sunday.
PN147
Correct. But they wouldn't, if the annual leave week that they took contained a grey day, would they get an eighth day off?‑‑‑You mean if it was before or after the block of seven days of annual leave?
PN148
Within the block of the seven days of annual leave, if there was a grey day that occurred in the general roster?‑‑‑When we put annual leave into the roster as a seven day block from Monday to Sunday, it doesn't matter what designation the day has, it becomes annual leave.
PN149
Right. So, in other words ‑ ‑ ‑?‑‑‑It doesn't matter if it's a rostered on-call period, a grey day, an RDO, it doesn't matter.
PN150
Right. So, in other words, whether you were rostered initially to have a grey day or otherwise, once you apply for annual leave, you get your annual leave in a seven day block and you don't get an extra day for the grey day, even if it was already programmed within your roster?‑‑‑No.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN151
Correct. Thank you. If that's the case, if somebody was ill on the Thursday, on the same example that we used previously, and took a personal day off, and didn't actually work that day, or was not on standby on that day, how does a grey day occur - using the explanation that you've just given us, how does a grey day occur on the Friday?‑‑‑Under the pre this agreement or post this agreement?
PN152
The pre this agreement or now?‑‑‑Because it ‑ ‑ ‑
PN153
I haven't got to now yet I'm just asking you the question about how that used to be dealt with in the past?‑‑‑So how it - prior to this agreement?
PN154
Yes?‑‑‑The Thursday shift would become a personal leave, the Friday would stay as a grey day, and Saturday will still be an RDO.
PN155
So earlier you put to us that the reason why you got a grey day was that you had to do X number of hours of flying time, right, to achieve two days off. You remember when you said that to us about the number of flying hours that came under your current management rules. So ‑ ‑ ‑?‑‑‑No, I said you can't exceed 90 hours of duty in 14 days.
PN156
Say if you came up to 90 hours during the rotation, how would you work out no, I'll withdraw that. So in most cases, if you had worked for five days, and you worked past 10 o'clock on or 22:00 hours on the Thursday, on the example that we used previously ‑ ‑ ‑?‑‑‑Mm-hm.
PN157
‑ ‑ ‑what is the reason why you would get a grey day on the Friday?‑‑‑Because Friday can't be called an RDO under the CASA, CO48 definition of an RDO.
PN158
Right. But why is a grey day granted?‑‑‑Because it fills the gap on the roster that would otherwise be a blank day of it's just what it's been called.
PN159
Right. What if I put to you that the reason why it occurs that way is that a pilot, under CO48 needs to spend two local nights prior to the RDO, or includes with the RDO, they need to spend two local nights at their base. Have you heard that term previously?‑‑‑Correct, that's why the RDO starts at 22:00.
PN160
Correct. So I put to you that a grey day is actually almost an accrued day off, isn't it? You accrue a grey day by virtue of the fact that you've worked past 22:00 hours on the Thursday, on that example that we used previously?‑‑‑Well, that's how they get rostered.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN161
Correct. So there is no other reason why anyone would be granted a grey day and, for example, if you did the day shift as opposed to the night shift on the Thursday, using exactly the same roster, except you're starting a different shift on the Thursday, you wouldn't get a grey day on the Friday, would you?‑‑‑Unless you overran the shift past 22:00.
PN162
Correct. So in other word those are the rules as to how you get the grey day; isn't it not?‑‑‑Yes. It's either rostered in the roster or it's achieved by virtue of going past 22:00.
PN163
Well, let me put it to you this way, then, Mr Remilton, the only reason anyone is given a grey day in their roster is because the roster, at the time when you were planning, or the structure of the roster would have meant that that person would have worked past 22:00 hours on the Thursday, in the example that we used previously. Worked past or had a rostered on-call period, yes.
PN164
No. I said worked past 22:00 hours, I didn't ask you about the on-call period. They've worked past, so under the roster they were scheduled, they've worked past 22:00 hours on that day; is it not?‑‑‑Correct, if they're scheduled to work past, they will get one.
PN165
Right. And if I could ask you, Mr Remilton, is a grey day a day off or is it a working day. A working day with no duties; flying duties?‑‑‑From personal experience I find it's a recovery day.
PN166
No, I'm asking you is it a work day or is it an entitlement to a day off?‑‑‑I wouldn't have said it was either.
PN167
Well, it's either a working day or it's not a working day, isn't it, Mr Remilton? I mean, how else would we what other days are there in the world of industrial relations?‑‑‑I've got no idea. I haven't read the book.
PN168
Yes, you haven't read the book, so you wouldn't know what it is. If I was to put to you that going back to the minutes can I show you minutes no, we'll hold that going back to the amendment to your statement, if I may, you have put to us that earlier in 2014 there was a proposed clause put up in relation to grey days, wasn't it?‑‑‑Correct.
PN169
Can you remember an argument being put up by the pilots, including yourself, that there should be a definition in relation to grey days in the agreement?‑‑‑Yes.
PN170
And that there wasn't one there earlier on?‑‑‑Correct.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN171
Can you then so the definition of the clause was brought forward? Can you remember that?‑‑‑Correct.
PN172
Who put that forward?‑‑‑The AFAP put one forward and so did the RFDS.
PN173
Correct. So there were different versions of what is a grey day, isn't there?‑‑‑Correct.
PN174
Right. Were there much difference between the, from your memory of course, between the AFAP clause and the RFDS clause?‑‑‑I believe they had similar intent, different wording, but ‑ ‑ ‑
PN175
Similar intent, different wording, but they were different?‑‑‑Yes.
PN176
Okay. Taking it back to the amendment can you remember us being before the Commission, before the good Commissioner?‑‑‑I do recall being here previously.
PN177
Yes. Can you remember the various discussions that occurred about trying to conclude negotiations in the enterprise agreement?‑‑‑Yes.
PN178
Can you remember there being a grey day clause proposed by the RFDS containing four parts?‑‑‑Yes.
PN179
All right. Can you remember correspondence being sent by the AFAP, which is in your statement, concerning the removal of two additional clauses, 8.3 and 8.4 of the grey day clause?‑‑‑Yes.
PN180
Can you remember that clause 8.3 and 8.4 being removed by the AFAP? I mean, sorry, by the Royal Flying Doctors?‑‑‑Yes, they were.
PN181
All right. So in relation to the correspondence that you've already pointed to that was 3 December 2014, that's PR8 in your statement, there was a whole list of items that were put up in trying to resolve the negotiations; were there not?‑‑‑Correct.
PN182
And that correspondence is written by myself on behalf of the RFDS and Mr Molnar. That's the correspondence you were referring to earlier?‑‑‑Yes. The 3 December one I presume we're looking at.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN183
Yes. Right. So that's, for the record, PR8 in your statement. So the amendment that you're talking about was to point 4 under grey days?‑‑‑Correct.
PN184
Right. Can you just read that paragraph?‑‑‑
PN185
The RFDS will honour the previous drafting of the grey days clause and confirms the removal of two paragraphs under clause 8.2 (clauses 8.3 and 8.4) in the draft agreement which was sent to the committee on 13 November 2014.
PN186
Okay. So just bear with me for a minute, Mr Remilton. So when we talk about the so there was a clause that was provided on 13 November 2014. Just bear with me. There was a draft agreement provided at that stage. Can you remember? With the clauses in them?‑‑‑Correct. The November one had the grey day clause went from a definition to a standalone clause.
PN187
Correct. An explanation was provided that it was a bit larger than the definition and it required a clause in the agreement?‑‑‑I believe it was something on the lines of clarity or something.
PN188
Yes. So the actual draft agreement that was sent contained four changes, four sub-clauses, wasn't it; 8.1, 8.2, 8.3 and 8.4?‑‑‑Correct.
PN189
Okay?‑‑‑The definition became 8.1 and 8.2 and ‑ ‑ ‑
PN190
So by 3 December the RFDS had agreed to remove 8.3 and 8.4, didn't it?‑‑‑Correct.
PN191
Did the AFAP, or any of the other pilots sitting around the bargaining table, ever raise how the operation of the grey days, and how it should work, since the time the objection to those two sub-clauses were raised?‑‑‑No, because we had a letter saying it was going back to how it was.
PN192
Right. But everyone went through the draft agreement, the tracked draft agreement that was sent to you, there was subsequent draft agreements also sent to the parties, weren't there?‑‑‑Correct.
PN193
Right. And, at no stage, can you remember any discussion about grey days?‑‑‑I don't believe it came up again.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN194
Right. But your objections to that clause that was sent on 13 November was to 8.3 and 8.4; was it not?‑‑‑In particular, yes.
PN195
All right. And that's what were the remaining two clauses, 8.1 and 8.2 is what finally mixed into the agreement a month and-a-half later, isn't it?‑‑‑From the November edition, yes.
PN196
And no-one ever queried any of the wording in those two clauses that you can remember?‑‑‑I don't believe we did subsequently.
PN197
Right.
PN198
THE COMMISSIONER: Mr Dasan, does the previous version of the agreement, that is the one where the grey day was in the definitions part of the draft, is that before the Commission?
PN199
MR DASAN: No, it isn't because it was actually in relation to correspondence between the parties as I understand it. I could be wrong, Commissioner, but ‑ ‑ ‑
PN200
MR MOLNAR: It is before the Commission. I'll just find it.
PN201
MR DASAN: Is it? I'm sorry.
PN202
MR MOLNAR: It's in Mr Remilton's witness statement. It's PR5.
PN203
THE COMMISSIONER: PR5.
PN204
MR DASAN: Right. Now, 5.10, Commissioner. Now, Mr Remilton, can I take you to 5.10 of that, at page 184, 86, probably 187 of your statement?‑‑‑Yes.
PN205
Okay. Can you just read for the Commission what it says under that draft, under 5.10?‑‑‑
*** PHILIP HENRY REMILTON XXN MR DASAN
PN206
Grey day is a rest period that is not considered a rostered day off duty. It is a rest period to ensure that a line pilot, senior base pilot is free of all duty and standby associated with the employment by no later than 22:00 on a day preceding a duty free day. Grey days will be provided on days following any rostered standby period or actual duty that finishes later than 22:00 hours on a day preceding a duty free day.
PN207
So it effectively says that it's not a day off, is it?‑‑‑No, it's a rest day.
PN208
It's a rest day, but it's not a day off?‑‑‑That's what that says. Yes.
PN209
Thank you. Would you agree that 5.10 is quite different, in that particular draft, quite different from 8.1 and 8.2, which ultimately meets in with the current enterprise bargaining agreement?‑‑‑Without going back to it, isn't it one word different?
PN210
It's different; is it not?‑‑‑So it's not the same, no.
PN211
It's not the same. Thank you. And the words in 8.1 and 8.2 were in draft agreements before the agreement was actually voted on?‑‑‑No, 8.1 and 8.2 existed from November until it was voted on. Yes.
PN212
Correct. And no objection to the wordings was ever raised by any of the parties at the enterprise bargaining table?‑‑‑No, we didn't have any objections after the December correspondence.
PN213
Thank you. Are you aware of any other documents, policy and procedure with the Flying Doctors that explains how grey days are to operate?‑‑‑Apart from in here, no.
PN214
So apart from what's in the enterprise bargaining agreement, there is no other document, either in policy or form, that would explain how grey days come about and how grey days are to operate within the RFDS?‑‑‑Not that I'm aware of.
PN215
Are you aware of different types of arrangements in relation to grey days somewhere else in Australia, either within the RFDS or other bodies?‑‑‑RFDS is the only place I've worked where I've had grey days.
PN216
Okay. So are you aware whether grey days operates differently from how it operates in the central operations area? Does any other branch of the RFDS, other parts other sections of the RFDS operate the grey day period, to your knowledge?‑‑‑I would assume that anyone else who does regular night or afternoon shifts would have some sort of provision for a grey day.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN217
But you're not aware about how they would use it, as in Western Ops or ‑ ‑ ‑?‑‑‑I haven't discussed rostering implications of grey days with other sections.
PN218
So let me just complete on this one, from the time the wording went into the agreement, an agreement was reached on 3 December in relation to the changes of the words, you cannot remember, either the AFAP or any other pilot group, you know, questioning the 8.1 and 8.2 and it's wording and its implications until the agreement that's carried by the staff, by the pilots?‑‑‑Not post 3 December, no.
PN219
Thank you. That's all I have, sir.
PN220
THE COMMISSIONER: Just before you finish, there, Mr Remilton, I think you were in the hearing room when I put the parties on notice, so I'm sure you're aware of what I'm going to ask you, and that is, I just want to find out in relation to Mr Field, who is the applicant, whose circumstances, at least, are at the heart of the present application, my understanding from the written outline supplied by the AFAP is that, and I don't know whether you need to see the written outline to confirm the basic structure of this roster?‑‑‑If I can grab my iPad I've got the what actually happened on there if that would help.
PN221
Well, what I want to do is set the scene and then say, "Well, look, what actually happened?" And, "How was that day treated and why was there no" ‑ ‑ ‑?‑‑‑Yes. I can grab my iPad and tell you what happened that day.
PN222
Yes, if you wish to do that.
PN223
MR DASAN: Sir, if I may, I've actually got a hard copy of the agreement with ‑ ‑ ‑
PN224
THE COMMISSIONER: Is this the attachment?
PN225
MR DASAN: It's not an attachment, sir. It's something that I'm just going to see whether he can actually drag his copy up first before I start putting the documents up, sir, if you don't mind.
PN226
THE COMMISSIONER: That's fine.
PN227
THE WITNESS: Yes, I've got the Port Augusta roster.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN228
THE COMMISSIONER: Right. Do you want to see the ‑ ‑ ‑
PN229
MR DASAN: Sir, do you want to have a hard copy of it?
PN230
THE COMMISSIONER: All right.
PN231
MR DASAN: Yes. Let me just ‑ ‑ ‑
PN232
THE COMMISSIONER: Let's just make sure we're talking about the same thing.
PN233
MR DASAN: Yes. Let me just have a look and tell me, Mr Remilton, whether that's the same as the document that you have there?‑‑‑It would appear like it.
PN234
Sir, may I hand the Commission a copy?
PN235
THE COMMISSIONER: Thank you.
PN236
MR DASAN: That's the roster. Can you explain to us, in those first two sheets, what's the genesis of those two sheets, and how those rosters actually work, please, Mr Remilton?‑‑‑I looked at page 1, I didn't look at page 2, but it looks like a printout of the Port Augusta roster.
PN237
Okay. In relation to the document that you had is that how the roster finally turns up in relation to Mr Field?‑‑‑Yes.
PN238
Okay. Can you explain those days within the Mr Field, so that's the fourth line down?‑‑‑Sorry?
PN239
Can you explain to the Commissioner how that roster actually works in relation to the grey day?‑‑‑Which date, sir?
PN240
The Saturday 11th to the 14th?‑‑‑Yes, Mr Field was originally rostered for a night two which is 18:00 to 06:00 on the Saturday the 11th. Likewise on Sunday the 12th, so 18:00 to 06:00 and then a grey day on Monday the 13th, RDO on Tuesday the 14th was the original. He wasn't fit for duty, I believe, on Sunday the 12th, so it became a I can't tell you exactly why but it ended up as a grey day and Monday the 13th up as a personal leave day. Yes.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN241
No, that's why I'm putting it to you because ultimately you would have had carriage of the roster, wouldn't you have? In filling in those days in the roster about how they would have been treated?‑‑‑I certainly seem to have versioned it, so I guess I was there.
PN242
So you can't explain how the personal leave day ends up on Monday the 13th as opposed to the N2 which is Saturday the 11th. No, Mr Field worked Saturday the 11th.
PN243
Right. So did he take a day off on Monday the 13th?‑‑‑That's what this would tell me.
PN244
So in relation to this dispute if he didn't take, what is termed here as PPL on Monday the 13th, can you explain to me why is it that he gets the RDO on Tuesday the 14th?‑‑‑Tuesday the 14th was always an RDO.
PN245
So what would have happened on Monday the 13th, Mr Remilton?‑‑‑Well, it says it was personal leave so he wouldn't have come to work.
PN246
So what I'm suggesting to you doesn't there seem to be an anomaly down there in relation to where the grey day actually falls?‑‑‑It would appear like they've been swapped around for some reason.
PN247
Yes. And who would have filled in to the where would the error have come from? Who would have been responsible for that error?‑‑‑Entirely possible me, on a night shift.
PN248
Yes. Okay. But you would be responsible for putting in that data at some stage for the pilots that you're responsible for?‑‑‑Either myself or an acting senior base pilot, yes.
PN249
Right. So, but in the normal course of events, just for the sake of trying to get a straight line on this, is that if you look at Saturday the 11th where there's a N2 which is a night two, that would have been followed by a grey day, wouldn't it?‑‑‑No, on the normal roster the Sunday would've been a night shift, night two.
PN250
Sorry, the Sunday would have been so Sunday the 12th would have been the night shift?‑‑‑Correct.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN251
And so Monday the 13th would have been the grey day?‑‑‑Correct.
PN252
Which has then been subsequently followed by an RDO?‑‑‑Correct.
PN253
So while there's an error there somewhere that would have been the normal flow of events?‑‑‑Correct, night two Saturday, night two Sunday, grey day Monday, RDO Tuesday.
PN254
Okay. How many days would you normally work in a week, so that you would get a grey day at the end of that? How many working days normally?‑‑‑It totally depends on what week. It's either two night shifts or it's two afternoons and two night shifts.
PN255
Two night shifts. So you basically work, what, five shifts before you actually end up with a grey day rostered day off, isn't it?‑‑‑Either two or four, depending on which cycle of the roster.
PN256
Just one minute, sir. So, as I previously put to you, the grey day actually is a day that's actually a working day, isn't it?‑‑‑Correct, yes.
PN257
Yes. Okay.
PN258
THE COMMISSIONER: So just to be clear, Mr Remilton, even though this document says on the 12th a grey day for Mr Field, that's not right, is it?
PN259
MR DASAN: That's not right.
PN260
THE WITNESS: I would say that I've probably stuffed it up on night shift when I was doing it and the PPL and the grey day should be the other way round, looking at it hourly.
PN261
THE COMMISSIONER: And what's the practical impact of the different versions as to whether or not it should have been a grey day? So putting aside whether this document is correct or not?‑‑‑Well, historically Sunday the 12th would have been a personal leave day, and Monday the 13th would have been a grey day.
PN262
Yes. That's right. Yes?‑‑‑I can't tell you whether it was there or somewhere after that that I've had a conversation with Damien Heath, Chief Pilot.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN263
Right?‑‑‑And got told that if someone was unable to go to work on a night shift preceding a grey day they both became personal leave days. And if you go further through the document that's what they become.
PN264
Okay. So is it your understanding that both the 12th and the 13th should have been treated, as far as the employer is concerned, as PPLs?‑‑‑That's what it became. It was either that event or another one soon after that that had the phone call with me and the chief pilot and that's how I was instructed to do it.
PN265
Thank you.
PN266
MR DASAN: But you can't remember whether you had a conversation with somebody or this was just ‑ ‑ ‑?‑‑‑No, I did have a conversation with the chief pilot.
PN267
With Mr Heath?‑‑‑Either that one or a subsequent ‑ ‑ ‑
PN268
All right?‑‑‑Something similar. I can't tell you exactly when.
PN269
Or with who?‑‑‑No, it was with Mr Heath.
PN270
Well, I mean, I know it was with Mr Heath, concerning Mr Field or some other employee, some other line pilot?‑‑‑I couldn't tell you who it was actually concerning, but I got told that's how I was to do it.
PN271
Right. This dispute was back in April 2015, wasn't it?‑‑‑The days in question we're looking at?
PN272
Yes. This roster is April 2015, isn't it?‑‑‑Correct.
PN273
So this was if I may take you back to your statement again, there should be a copy I think of the current enterprise bargaining agreement. For the purposes of the Commission, can you tell us when the enterprise agreement was actually certified by the Commission? We're taking the front page of the enterprise bargaining agreement?‑‑‑First of May.
*** PHILIP HENRY REMILTON XXN MR DASAN
PN274
First of May. So in reality this arrangement, as we knew it, occurred when there was no enterprise bargaining agreement in place, isn't it? I mean, there was an enterprise bargaining agreement, but not the current enterprise bargaining agreement?‑‑‑Correct.
PN275
Correct. So this was, after discussions with your chief pilot, effectively the custom and practice; was it not?‑‑‑Well, apart from the grey day and the personal leave day being the wrong way around.
PN276
Yes?‑‑‑It's how it happened prior to this agreement.
PN277
Yes. I accept that there's some you know, it seems like an inputting error more than anything else, but the accepted practice what I'm putting to you, Mr Remilton, was that the accepted practice, as put to you by the chief pilot at that time, was that the custom and practice was that if a person had not worked through the preceding day on the night shift that that was to be treated as a personal leave day, wasn't it?‑‑‑The rostered on-call shift was.
PN278
Yes. Okay. And you accepted that at that stage?‑‑‑Yes. Well, it was just the so, if Mr Field had booked off on the night shift it became a personal leave day.
PN279
Right. No further questions.
PN280
THE COMMISSIONER: There might be an issue about the fact we're using an example that didn't occur under the life of the current agreement, but I'll raise that with the counsel in a moment, but do you understand that Mr Field was was he actually unfit for duty on the 13th, that is, the day before the RDO?‑‑‑I have no idea as to what his state was by then.
PN281
Okay. All right. Fair enough. Anything arising from that?
PN282
MR DASAN: Nothing, sir.
PN283
THE COMMISSIONER: Any re‑examination?
MR MOLNAR: Just a few questions.
RE-EXAMINATION BY MR MOLNAR [11.10 AM]
*** PHILIP HENRY REMILTON RXN MR MOLNAR
PN285
MR MOLNAR: Mr Dasan asked you some questions about annual leave, sick leave, bereavement leave and how they were dealt with in relation to the roster. With annual leave, you said that that gets assigned in seven-day blocks?‑‑‑Correct.
PN286
Is annual leave ever rostered while a roster is already in effect?‑‑‑I suppose it could be but people have normally booked annual leave well in advance.
PN287
So by the time that the roster is published, annual leave is clearly in the roster?‑‑‑Correct.
PN288
In relation to personal leave or bereavement leave, how soon are they notified ‑ ‑ ‑ ?‑‑‑Well, when ‑ ‑ ‑
PN289
‑ ‑ ‑ to the RFDS?‑‑‑ ‑ ‑ ‑ the pilot chooses to ring me, which has been after a shift started. It has also been earlier in the day it's close to the event.
PN290
But they're notified while the roster is still in practice?‑‑‑Correct.
PN291
While the roster is in effect?‑‑‑Yes.
PN292
Are there any other reasons why day‑to‑day changes or day of operations would occur?‑‑‑Only if the flight due time limits are going to be exceeded or likely to be exceeded by continuing a shift.
PN293
So the only circumstances that day‑to‑day operational changes to a roster would occur is because of personal leave and exceeding flight duty hours?‑‑‑Correct.
PN294
They're the only ones you can think of?‑‑‑Correct.
PN295
No further questions.
PN296
THE COMMISSIONER: Very well.
PN297
Mr Remilton, you're completed. You can stand down?‑‑‑Thank you.
You're free to make your way back to the hearing room?‑‑‑Thank you.
*** PHILIP HENRY REMILTON RXN MR MOLNAR
<THE WITNESS WITHDREW [11.12 AM]
PN299
MR DASAN: If it pleases the Commission, I would like to call Peter Docking.
PN300
THE COMMISSIONER: Just before you do, we probably should deal with the roster document, given that it's already been the subject of evidence.
PN301
MR DASAN: Yes.
THE COMMISSIONER: So I will admit the - I think it's best described as the Port Augusta roster. We'll mark that as exhibit R1.
EXHIBIT #R1 PORT AUGUSTA ROSTER
PN303
THE COMMISSIONER: Just before you start, and look I should have raised this with the parties earlier, but obviously it appears that the parties are using an example in order to illustrate the dispute. Do I take it that even those these events occurred before the formal life of the agreement that you're inviting the Commission to treat that as an example of the dispute and the way in which the parties have a different view about how those events may have, or will, or have unfolded during the actual life of the agreement?
PN304
MR MOLNAR: Yes, we are asking the Commission to do that. This dispute crosses into even though the facts that give rise to the dispute occurred before this agreement was in operation, only two things I'd say in relation to that is that this dispute has eventually gone into the period of operation of this current agreement, so we say that that can be dealt with under the current dispute resolution clause; and, second, in response to a question you asked Mr Dasan earlier, he has no objections to the jurisdiction of the Commission in this dispute.
PN305
THE COMMISSIONER: That's true, although the parties can't I've got to qualify this in the context of the current act, but in effect, the parties can't agree a jurisdiction that doesn't actually exist.
PN306
MR MOLNAR: No. So my first statement that the dispute has, you know, trickled over into the current agreement, we think that's sufficient to give the Commission jurisdiction, even though the facts arose earlier.
PN307
THE COMMISSIONER: But I understood, at least from Mr Remilton's evidence, was that the circumstances giving rise to those facts in the dispute coming here is because that's how the agreement has been applied by the RFDS.
*** PHILIP HENRY REMILTON RXN MR MOLNAR
PN308
MR MOLNAR: If I understand what you're saying correctly, I think that's only relevant in terms of giving some historical context to the introduction of the grey day clause in the current agreement.
PN309
THE COMMISSIONER: Yes. But, no, my statement is directed at my understanding is that whilst it might have happened first with Mr Field, the RFDS has a view as to how the agreement should be applied and is applying the agreement in that way.
PN310
MR MOLNAR: Yes.
PN311
THE COMMISSIONER: And that's what the dispute is about.
PN312
MR MOLNAR: Yes. Yes, that is what the dispute is about.
PN313
THE COMMISSIONER: In other words, there is a dispute under the life of the agreement about how it is to operate.
PN314
MR MOLNAR: Absolutely.
PN315
THE COMMISSIONER: So in that context it would have been better if the example of Mr Field occurred during the legal life of the agreement, but it doesn't seem to be a major issue.
PN316
MR MOLNAR: No, I would agree.
PN317
THE COMMISSIONER: So long as what I've said is accurate.
PN318
MR MOLNAR: It is accurate.
PN319
MR DASAN: Can I deal with the issue of jurisdiction, Commissioner?
PN320
THE COMMISSIONER: Yes.
PN321
MR DASAN: I think that there are a couple of things here that need to be said. The issue in relation to Mr Field and how this dispute comes about pursuant to section 739 of the Act presents a problem - not for us, present a problem for the AFAP, but nevertheless the example of Mr Field is not a correct one to use and I think it is not the basis of the dispute moving forward and I'll come to that in a minute as to why we say the Commission has got jurisdiction, but not in relation to the occurrence in relation to Mr Field.
PN322
We say this because the issues concerning Mr Field concerns a different enterprise bargaining agreement that never had a definition of a grey day, anyway, and that there were various customs and processes that were used in relation to grey days, which I'd already put to Mr Remilton earlier on. But the issue in relation to Mr Field actually transforms itself it metamorphosis itself as questions in relation to the interpretation of clause 8 and clause 16 of the current enterprise bargaining agreement.
PN323
If there's a dispute about what those clauses say, then it's our view that the Commission and I mean, it's quite correctly been brought up by the AFAP and we believe that the Commission then has jurisdiction in relation to the way clause 8 and clause 26, which is in the outline of submissions, actually applies and is to be applied. We say on those grounds that the Commission has got grounds to hear the dispute in that respect, but I think and it is our submission that in relation to the actual examples concerning Mr Field, it's only a historical fact, but it can go no further because as happy or as unhappy as Mr Field is in relation to those circumstances that the dispute can ever be the dispute that's before the Commission can only ever be about the validity of clause 8 and clause 16 of the current enterprise bargaining agreement, not a circumstance that applied when there was nothing in the enterprise bargaining agreement and we further say there's no dispute in relation to the 2011 enterprise bargaining agreement.
PN324
The dispute that's been brought by the AFAP deals squarely on two clauses in the 2014 agreement, which was only entered into on 31 May 2015. So we are saying that this is all going to boil down to the actual interpretation of what clause 8 and clause 16 and how they operate. It's a nice argument to have in relation to the circumstances concerning Mr Field, but the only the best we can do with that example is the fact that it's all we can do as an example of how grey days work and how they are actually constructed pursuant to the award. But there is no finding that can be made in relation to the circumstances involving Mr Field. Those are our submissions.
PN325
THE COMMISSIONER: I mean, Mr Field is the applicant.
PN326
MR DASAN: Yes.
PN327
MR MOLNAR: Commissioner, perhaps if we could put it this way: through the circumstances that Mr Field has gone through prior to this agreement becoming operational, since then the RFDS has put forward an assertion as to how it wishes to treat grey days under the current agreement. Regardless of whether it has actually exercised those rights in the way that it contends it can do, the fact is that we've got a position as to future conduct from the RFDS. We disagree with that and we think that that should suffice to enliven the dispute arising under the current agreement.
PN328
MR DASAN: Commissioner, if I may, I must object to that simply because, as I said before, pursuant to an application which was brought before us is an application pursuant to 739 and it enlivens jurisdiction in relation to a series of matters, one of it is in relation to a dispute process with regards to clauses in the enterprise bargaining agreement, because that's the dispute. That's the dispute that we are faced with. That's the dispute that we have responded to, but when we initially looked at the actual application, while it started off with Field and we thought that was just the buggy on which the carriage was actually the couple of horses were tied to it so they could actually force a dispute, but the reality is this: the outline put forward by the AFAP contends for some strange reason that the disputes about clause 8 and clause 16 of the current enterprise bargaining agreement.
PN329
So while Mr Field's name is on the actual application as such, Mr Field's circumstances is only to show how the RFDS actually applied their understanding of what a grey day actually is. What the actual dispute is about now is whether the clauses 8 and 16 of the current enterprise bargaining agreement, given that there has been no past and present agreement that dealt with those two matters, whether the current enterprise agreement with those two clauses can sustain an unambiguous definition that provides for the RFDS to do what it's doing now.
PN330
It dealt with Mr Field's issue. It put in a form of operation in relation to how it would deal with a day on which Mr Field didn't work. They said it's a personal leave day and they've said that they so therefore, given that he didn't work those hours, he's not entitled to a grey day. Okay? That's one of the ways it's been dealt with for better or for worse back in 2011, but that's not the dispute. The dispute that's before the Commission says that there was an issue concerning Mr Field back in April 2015 before the operation of this enterprise agreement comes about, but what we are challenging is how, whether that how Mr Field was treated in April 2015 is how he would have been treated if clause 8 actually applied.
PN331
THE COMMISSIONER: Yes. So if that same scenario occurred now ‑ ‑ ‑
PN332
MR DASAN: Correct.
PN333
THE COMMISSIONER: ‑ ‑ ‑ the RFDS would take the view that it's set out in its position?
PN334
MR DASAN: Absolutely. So what we're saying here is that that's what the dispute that's the dispute that's before the Commission. The Commission cannot interpret clauses in an enterprise agreement that don't exist back in April 2015. That's what we're saying. We're saying that there is no jurisdiction in relation to Mr Field's immediate circumstance in April 2015. The dispute before the Commission pursuant to 379 of the Act deals specifically with a dispute that has gone through the dispute settlement process about whether there is any ambiguity about clauses 8 and 16. That has already been the line of questioning that we've put to Mr Remilton.
PN335
THE COMMISSIONER: I don't think there's any doubt that your argument talks about the 2015 agreement.
PN336
MR DASAN: Absolutely, sir. So what I'm saying is that personally from a submission point of view we are unconcerned with Mr Field's personal circumstances in this dispute. What we're concerned about is any argument that may be raised with the AFAP about any form of ambiguity, which is the first line in relation to the legal principles we used in this matter the first line of whether there's any ambiguity in relation to the operation the structure and the operation of clause 8 and subsequently the structure and the operation of clause 16. That's what we're here arguing. We say on those two points the Commission has jurisdiction, but the rest of that, I just don't think anything flows.
PN337
THE COMMISSIONER: Okay. So the subtlety of that, as I understand it, is you say the Commission can't actually determine whether Mr Field in those circumstances should have been entitled to the grey day because that ‑ ‑ ‑
PN338
MR MOLNAR: Has things transpired, I mean, there's no remedy that we're asking to be granted to Mr Field. I'm actually not sure if there's much difference between Mr Dasan and myself ‑ ‑ ‑
PN339
THE COMMISSIONER: No. I suspect ‑ ‑ ‑
PN340
MR MOLNAR: So I don't ‑ ‑ ‑
PN341
THE COMMISSIONER: No, I don't think there is either, but I just want to be sure.
PN342
MR MOLNAR: No. Yes.
PN343
THE COMMISSIONER: So my understanding though and this is what I want to clarify, though, my understanding is the relevance of Mr Field's circumstances might be, at least it's an illustration, because if that occurred now, the RFDS would take the view that it did at that time, would take the same view now under the agreement.
PN344
MR DASAN: If I may, Commissioner. That's not the argument and it can never be the argument because whatever the RFDS did in April 2015 or any time before that is a matter not concerning this dispute. That's what I'm saying.
PN345
THE COMMISSIONER: Mr Dasan, I don't think you heard what I said.
PN346
MR DASAN: Well, I ‑ ‑ ‑
PN347
THE COMMISSIONER: My understanding is that if the same circumstances occurred under the 2015 agreement, the RFDS would take the view that it did then as to how the 2015 agreement should operate.
PN348
MR DASAN: Can I put another position to you, sir? I think that what enlivens the Commission's jurisdiction in this particular matter is that based on the wording of clause 8 and 16 of the current enterprise bargaining agreement, if the circumstances in relation to Mr Field ever showed its head ever again and I'm sure that you've already seen it on the rare occasion where that actually occurs how would those clauses actually operate?
PN349
THE COMMISSIONER: Yes, well, my understanding is ‑ ‑ ‑
PN350
MR DASAN: And that's where we are. That's where I see the dispute is.
PN351
THE COMMISSIONER: Correct. Correct. But the answer to my question is yes, that you do take the view that how you applied it on that occasion is how the agreement should be applied.
PN352
MR DASAN: If that's how the Commission wants to see it, that's fine.
PN353
THE COMMISSIONER: Yes, okay.
PN354
MR DASAN: But in the question of where jurisdiction actually lies, it can only ever lie in relation to the 2015 agreement.
PN355
THE COMMISSIONER: I think we're in heated agreement.
PN356
MR DASAN: Okay. Then we're on the same page, Commissioner.
PN357
THE COMMISSIONER: I'm absolutely convinced we're all on the same page here, but the parties will appreciate that jurisdictional issues are difficult matters in that they have to be resolved and have to be determined because, as I said earlier, subject to the Act allowing an agreement, you can't agree jurisdiction. So that's why you'll find Commission members often raise jurisdiction because we have to. All right. I'm comfortable to proceed, Mr Dasan. Is there anything else you wanted to add by way of outline?
PN358
MR DASAN: Sir, I just want to make some opening statements before I call Mr Docking. Some of what I've already put to you about jurisdiction is part of my opening statements in relation to this matter.
PN359
THE COMMISSIONER: Yes.
PN360
MR DASAN: I do say that the dispute of the clause and the provisions of the agreement before you is two clauses arising out of the 2015 agreement and we say that the clauses here that we are here as part of this dispute concerns clauses 8 and 16 and it's a question of how and whether the RFDS has been dealing with this concept called "grey days" in line with what's currently in the enterprise bargaining agreement, given that no such definition actually existed and as we've already heard from Mr Remilton earlier on today, quite evidently, there was a custom and practice of the sort that actually occurred in previous years, anyway.
PN361
What we're saying here is that as part of this dispute, that the definitions of whether the application of grey days the application of grey days is in line with how we say the how clause 8 and clause 16 are structured within the enterprise bargaining agreement. We will lead to the position that we're saying that there is no ambiguity about how clause 8 is to be applied and we say there is no ambiguity about the way the RFDS actually applies it unless it is applied from 1 May onwards.
PN362
Regardless of whether the same practice was used as a custom and practice previously, what we're saying is that in our view we are saying that the actual application of those matters concerned the same things. We say that there's no part of the previous agreement that deals with the matters being arbitrated before us and so the 2011 agreement doesn't come into play in any shape or form and as far as enlivening the Commission's jurisdiction, we say that to an extent the AFAP has actually been through the dispute settlement procedure in 44B of the agreement and that's again we were prepared to concede that on the basis that it enlivens jurisdiction on this matter.
PN363
We say that the dispute before the Commission is twofold: (1) the AFAP's argument on behalf of Mr Field is the subject matter of clause 16 about what the structure of the overall roster actually is and when it can change and when it can't change and when it can change with the consent of the parties and who those parties are; and (2), the second part of the dispute we say is about grey days and how they are allocated or changed or substituted because it is the submission of the RFDS that effectively this is a working day and you accrue it and if you don't accrue it, then you're expected to work it.
PN364
On that basis we say that there is no ambiguity, both in custom and practice of clause 16 in relation to how rosters are set and we are saying that that process, the parties are in violent agreement. The only part of that process where we say that there which will lead to some submissions and some evidence in a little while is the question of are grey days once into a roster there forever and ever and we say that's not the case because there are certain things that need to happen before you can accrue a grey day and it's only when those circumstances are reached that you get a grey day. When those circumstances are fulfilled, that's when grey days are granted.
PN365
We say that roster shift arrangements change all the time. We say in relation to personal leave, grey days, bereavement leave, annual leave, long service leave, all of these things come back into play and for operational reasons, rosters do change, but not the overall structure of the rosters, just those things that need to make sure that we do have a service and it can fly at the times when they're needed.
PN366
So we say it would be our contentions moving forward now that clause 16 and 18, we're saying are clear and unambiguous and there are no other meaning or application that should be imputed into the way they both operate at this point in time. So on that basis, we seek to call Mr Peter Docking.
PN367
THE COMMISSIONER: Do you want your outline marked? Do you want your outline of submissions marked?
PN368
MR DASAN: Yes, sir.
PN369
THE COMMISSIONER: Yes. I'll mark them as exhibit R2.
MR DASAN: R2? Thank you.
EXHIBIT #R2 RESPONDENT'S OUTLINE OF SUBMISSIONS
THE COMMISSIONER: Yes, Mr Docking, called and sworn? Mr Docking, make your way to the witness box. Thank you.
<PETER WILLIAM DOCKING, SWORN [11.34 AM]
EXAMINATION-IN-CHIEF BY MR DASAN [11.34 AM]
PN372
THE ASSOCIATE: State your full name, please?‑‑‑Peter William Docking.
PN373
Your address?‑‑‑(Address supplied)
PN374
And your occupation?‑‑‑As general manager of Aviation Services.
PN375
Take a seat?‑‑‑Thank you.
PN376
THE COMMISSIONER: Yes, Mr Dasan?
PN377
MR DASAN: Mr Docking, for the purposes of this matter before the Commission you have provided a statement to the Commission?‑‑‑Correct.
PN378
And that statement is the one before you today?‑‑‑That is also correct.
PN379
And that concerns a statement given containing eight pages?‑‑‑That sounds correct. Yes.
PN380
And about 10 attachments?‑‑‑Yes.
PN381
Could I just mark that for mention at the moment?
PN382
THE COMMISSIONER: You want it admitted?
PN383
MR DASAN: Yes.
PN384
THE COMMISSIONER: Any objection?
PN385
MR MOLNAR: No objections.
*** PETER WILLIAM DOCKING XN MR DASAN
THE COMMISSIONER: Very well. Mr Docking's statement and attachment will be admitted and marked exhibit R3.
EXHIBIT #R3 STATEMENT AND ATTACHMENT OF PETER WILLIAM DOCKING
PN387
MR DASAN: In relation to the statement that you have provided, Mr Docking - in relation to the creation of the 2015 or 2014 enterprise bargaining agreement between the Royal Flying Doctors Central Operations and the Pilots, you've been involved in the negotiations from the first meeting?‑‑‑Correct. I think it was about August 2013.
PN388
Can you explain for the Commission the operation of CAO48 in general terms as to what it is and its general exemptions that apply to the Royal Flying Doctor?‑‑‑Correct. CAO48 ‑ ‑ ‑
PN389
Sorry, if I may, sir. Royal Flying Doctor Central Operations?‑‑‑Good clarification. Civil Aviation 48 is produced by the Civil Aviation Safety Authority under the - I'll have to chase up some legislation. They've changed it slightly, but effectively the EA, it's produced under the jurisdiction of Civil Aviation Regulation 5.55. It is a series of legislative requirements that are in place to control the flight and duty time performed by any pilot with the aim to manage the fatigue risk of the pilots. It's a very historic process, but Civil Aviation Order 48 in its form in the previous form is very old the form that we're talking about here and RFDS Central Operations has been operating under a standard of industry exemption against the provisions of Civil Aviation Order 48 since the earliest exemption that I'd be aware of would be somewhere around about 1989, 1990. Civil Aviation Order 48 has been under assessment by CASA for some time to review it.
PN390
And that exemption would be marked PD1 in your statement?‑‑‑That is correct.
PN391
Can you give us a rough or a general explanation about what that exemption actually is and how it operates?‑‑‑Effectively, it is a document that overrides the like it says, exempts against the compliance with the direct legislative provisions of CAO48 on the proviso that we comply with the conditions in the exemption and it provides the conditions in the exemption and it provides the or it opposes the limitations for the maximum number of hours that a pilot may work in any duty period, the maximum number of hours they may find in a duty period and also it specifies the minimum hours that must be provided to a pilot for their time free of duty.
*** PETER WILLIAM DOCKING XN MR DASAN
PN392
So can you explain for the Commission what are the maximum number of hours that a pilot can fly?‑‑‑It varies. In basic terms, a maximum duty period of 12 hours will apply to air medical operations and within that time you can do - I think it's nine hours' flight time. Our pilots don't go anywhere near that as a usual course. So, yes, it's there are provisions for extensions beyond the basic limits and so on.
PN393
So in your experience, how many days in a seven-day roster how many days would a pilot fly?‑‑‑How many days may they fly?
PN394
May they fly?‑‑‑They may fly effectively six in any seven. The requirement under the exemption is that in any eight nights a pilot is to have one period completely free of duty of 36 hours minimum and invoking two local nights.
PN395
So can you explain for the purposes of the Commission what a local night is how a local night is defined, please?‑‑‑A local night is a minimum period of eight hours that encompasses the hours 2200 to 0500 in the morning.
PN396
So if I was to apply that to an application of a grey day - before we get to the application, sir, can you just for the purposes of the Commission provide your understanding of what a grey day actually is?‑‑‑A grey day that concept is effectively, for want of a better term, it's a marker in the roster or a provision in the roster to ensure that a pilot is free of the his duties and rostered stand-by and all those things all sort of work related activities by no later than 2200 hours on the day preceding or the night preceding a day off.
PN397
So if I was going to give you an example, let's use a Thursday, Friday, Saturday example, from what you've just put to us, if a pilot had worked up to the Thursday and worked a night shift and therefore only worked for five days, say for example on the roster, and they had an RDO on the Saturday, then and if they worked past 2200 hours on the Thursday night, would that be considered to be a local night?‑‑‑If they worked past 2200 hours on the Thursday night and their first day off is going to be the Saturday?
PN398
Yes?‑‑‑Because they've worked past 2200 on the Thursday night, that doesn't affect their day off on the Saturday because they would have need to have been free of duty from 2200 on the Friday night.
PN399
So how does a grey day get built into in that example I've just given you ‑ ‑ ‑?‑‑‑In that example there, the grey day is built into - would be built into the roster to provide a buffer, if you like, after that night period on the Thursday to ensure that the pilot is free of his duties, his work related duties, by 2200 hours on the Friday night.
*** PETER WILLIAM DOCKING XN MR DASAN
PN400
So in other words, if the pilot had worked past 2200 hours on the Thursday night, then the roster would provide for a grey day on Friday, would it not?‑‑‑Correct.
PN401
And then they'd have their second night off in relation to the RDO day on the Saturday?‑‑‑The Saturday night would be the second night off. Yes.
PN402
Is that in your knowledge across the aviation industry? Are grey days generally used, not only in aero medical situations, but in other situations as well?‑‑‑Some sort of mechanism, be they call it a grey day, various organisations will call them different things and impose different requirements. A grey day has evolved in our operation to meet the distinctive rostering needs and rostering structures, but a similar sort of process will apply across the industry to ensure that a pilot is free of duty by no later than 2200 on the night preceding a day free of duty.
PN403
Would there be subtle variations as to how that's applied, either across the various sections of the RFDS?‑‑‑There may be. I'm not that familiar with the rostering practices elsewhere, but there will always be something like that.
PN404
Yes?‑‑‑It's - sorry, if I can just explain there? A grey day is probably a the need for a grey day arises from the in recognition of the most appropriate way of managing fatigue. Rosters are better designed, so if you start early in the day, as a rostered week or so develops, your start gets later and later, a forward progressing roster, which in our terms basically means that you'll end up having somebody on a late shift or an evening or a night shift prior to then starting days off eventually.
PN405
Can I now take you to PD2 in your statement, which is the current enterprise bargaining agreement? Would you look at clause 8? Before we go to clause 8, Mr Docking, can you tell me, was there any document or clause in a previous enterprise bargaining agreement that dealt with grey days as far as the RFDS Central Operations went?‑‑‑The previous agreement and anything before that, that I'm aware of, was completely silent on this concept of a grey day.
PN406
But quite evidently, grey days existed prior to 1 May 2015?‑‑‑Yes.
PN407
It's just that it was never defined ‑ ‑ ‑ ?‑‑‑There was no definition.
PN408
‑ ‑ ‑ in any of your documentation?‑‑‑Correct. No definition at all.
PN409
So would you say that the purpose of actually adding a definition to the current enterprise bargaining agreement was to provide some form of clarity?
PN410
MR MOLNAR: I'm sorry, these are pretty leading questions for ‑ ‑ ‑
*** PETER WILLIAM DOCKING XN MR DASAN
PN411
THE COMMISSIONER: Yes, I agree.
PN412
MR DASAN: All right. That's no problem. I withdraw.
PN413
Can I take you to clause 8?‑‑‑Yes.
PN414
Can you, for the purposes of the Commission, read clause 8.1?‑‑‑Yes:
PN415
A grey day is a rest period that is not considered a rostered day off duty. It is a rest period to ensure a line pilot or a senior based pilot is free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.
PN416
Let me just break that down, each sentence. Can you tell the Commission that first sentence:
PN417
A grey day is a rest period that is not considered a rostered day off.
PN418
Can you explain what that means, Mr Docking?‑‑‑The simplest way to define that would be that a grey day is a work day. It is considered a work day.
PN419
Now let's look at the next sentence. Can you please read that to the Commission?‑‑‑Yes:
PN420
It is a rest period to ensure a line pilot, senior based pilot, is free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.
PN421
Can you explain to the Commission what that means and how that operates?‑‑‑Again, it's it goes back to what I was saying before, it's providing to a way to ensure that the pilot gets that first local night of his day off duty.
PN422
Can I also ask you to read clause 8.2?‑‑‑Yes:
PN423
Grey days will be provided on days following any completed rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.
*** PETER WILLIAM DOCKING XN MR DASAN
PN424
For the purposes of the Commission can you explain to the Commission what that means and how it operates?‑‑‑What that means is that it's one thing to roster a pilot for a stand‑by period or a duty that finishes past 2200 hours. The grey day applies once the pilot has actually and the roster must provide for that, but the grey day is only really effective once the pilot has actually performed the duty or the stand-by period past 2200 hours and thereby basically eaten into what would be a local night.
PN425
So what happens when a pilot, for whatever reason, takes a bereavement day off or a personal leave day off on the night preceding the grey day?‑‑‑If they haven't worked the shift that has given rise to the need for a grey day, then the grey day concept is negated because they are not going to be working past 2200 hours. So the grey day effectively could actually be a day off under those circumstances.
PN426
So in other words, if what would happen if a pilot called in sick for or a bereavement day off on the grey day? How would that be treated?‑‑‑If they have fulfilled the obligations of the rostered period that gave rise to the grey day in that roster, then there's not a problem. The grey day would still stand. It is a necessary device because under those circumstances you're using it for what it's there for.
PN427
So if a person took a day preceding the grey day off as a personal leave day, you have put to us that that wouldn't actually lead to a grey day being created the next day?‑‑‑The roster might ‑ ‑ ‑
PN428
So what happens if they took a personal leave day after the first day and they took another personal leave day off on the Friday? How would that be treated?‑‑‑Effectively, that's two personal leave days.
PN429
Looking at clause ‑ ‑ ‑
*** PETER WILLIAM DOCKING XN MR DASAN
PN430
THE COMMISSIONER: Sorry. Just so I understand that, just on that, assuming this example that they're only unfit for duty on the day before what is the rostered grey day, how should the grey day be treated in your view?‑‑‑In my view, if they were only sick on the only unable to fulfil their duties on the day preceding the rostered grey day, then ideally they should contact their senior based pilot and say, "I'm free for - I'm fit for duty and I can be reassigned to another duty," because one of the operational benefits that would come out of that is bearing in mind that if somebody has taken a personal leave day has created a hole in the roster. I've had to find a pilot who is able to fill that hole and they themselves, you know, might have encroached on their required numbers of days off and things like that and so if a person, having taken a personal leave day, is now subsequently fit for duty on what was their rostered grey day, operationally it can help things out from time to time to enable us to then maybe repay a day that's due to somebody who has filled in for that previous ‑ ‑ ‑
PN431
Presumably, as long as they don't work past 2200?‑‑‑Correct. Otherwise, yes, it can flow on. If somebody has gone sick on a night shift, then the pilot that I need to get to fill that night shift is quite likely going to need a grey day himself the following day.
PN432
Thank you.
PN433
MR DASAN: Mr Docking, you just provided an explanation in relation to how grey days are defined in the agreement and how it functions?‑‑‑Sorry, I missed that.
PN434
You've just run through the definition of the grey days as it appears in the agreement and told us how it functions. In your mind, is there any ambiguity about the operation of clause 8.1 and 8.2?‑‑‑I don't believe there's any ambiguity about that, no.
PN435
Do you find any ambiguity in the way it should be implemented from your reading of 8.1 and 8.2?‑‑‑No.
PN436
Can I take you to the process of negotiating clauses 8 in the agreement? If you look at your statement, can you remember back in April can you remember a time early in the negotiations when the concept of grey days was actually raised when it was actually first raised?‑‑‑It was back in one of the first meetings when Laurie Cox was still representing the AFAP. It may have been in the log of claims, but, yes, it was certainly discussed by September of 2013.
PN437
There was in a clause that was actually put up at some stage in relation to how the grey days would work, wasn't there?‑‑‑There was a clause put up as a generally as a definition of what a grey day was.
PN438
And at some stage in can I take you to PD7 of your statement?‑‑‑I need a table. Yes, I have that.
PN439
Can you remember that email from Ms Leuw going to the members of the bargaining team?‑‑‑Yes, I can remember that.
*** PETER WILLIAM DOCKING XN MR DASAN
PN440
Can I take you to clause 7 of that email where it discusses clause 8?‑‑‑Yes.
PN441
With that agreement came a clause within the draft enterprise bargaining agreement, didn't it?‑‑‑Correct.
PN442
Can I take you to the enterprise bargaining agreement, that draft agreement?‑‑‑Yes.
PN443
There are four subsections to that clause in that draft agreement, isn't there not?‑‑‑Correct.
PN444
Can I ask whether you drafted those clauses, Mr Docking?‑‑‑The clause subclauses 8.3 and 8.4, I definitely drafted and I modified made a modification in clause 8.2.
PN445
So that was the clause that was distributed for discussion throughout through all of the other bargaining agents?‑‑‑Correct.
PN446
Can you take us through each of those subclauses? Can you read 8.1 and 8.2, 8.3 and 8.4, one at a time?‑‑‑8.1 is, as I read out before:
PN447
A grey day is a rest period that is not considered a rostered day off duty. It is a rest period to ensure a line pilot, senior based pilot is free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.
PN448
8.2, again, the same as I read out before:
PN449
Grey days will be provided on days following any completed rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.
PN450
Can you read 8.3 and 8.4?‑‑‑8.3:
*** PETER WILLIAM DOCKING XN MR DASAN
PN451
Where the line pilot or senior based pilot has not completed the preceding rostered on-call or duty period later than 2200 hours in accordance with clause 8.2, the line pilot, senior based pilot, may be reassigned for rostered duty of the rostered grey day and may be reassigned as a rostered day off. Where a grey day falls within a block of personal, or upper respiratory tract infection leave absence, will be treated as an absence from work and the line pilot, senior based pilot's, relevant leave accrual will be debited according.
PN452
I take it that this draft was put up for discussion between the parties?‑‑‑Correct. Without in the document that's set out ‑ ‑ ‑
PN453
As a draft?‑‑‑Yes. Very much a draft.
PN454
Can you tell us your reasons for adding the 8.3 and 8.4? We'll come to the amendment in 8.2 in a minute, but just why did you actually ‑ ‑ ‑?‑‑‑The ‑ ‑ ‑
PN455
‑ ‑ ‑ add the 8.3 and 8.4 ‑ ‑ ‑?‑‑‑The important ‑ ‑ ‑
PN456
‑ ‑ ‑ in this particular iteration of the agreement?‑‑‑The reasoning here was while we quite early in the piece had discussions about the concept of a grey day and there was a general agreement that, yes, a definition for grey day will go into the agreement, when it came time to actually produce the draft document for submission to the parties to consider and eventually move towards recognition, it was determined that putting a definition of grey day into the definition section of the agreement, that would be the only place where a grey day was defined. There was no content elsewhere. There was no mention of the grey day elsewhere in the agreement, which the definition was going to clarify. So when it was moved it was considered that it was more appropriate that it has a that it be maintained and but that it have a specific clause to define: (a) what it is; and (b) how it works.
PN457
Can I also take you to the words in 8.2?‑‑‑Yes.
PN458
So you said there was an amendment to that. Can you tell us what the amendment is to 8.2?‑‑‑The amendment was a single word and that is "completed". Without that word, the concept is meaningless.
PN459
Can you explain what you mean by meaningless?‑‑‑Sure. A grey day - without that word there, clause 8.1 and sorry, subclauses 8.1 and 8.2 will define when a grey day should be entered into a roster, roster of duties, that's promulgated for pilots to sort of start to think about, however, if the grey day is only effective when that duty that has given rise to it, or the rostered duty that's given rise to it, is actually performed, it's completed.
*** PETER WILLIAM DOCKING XN MR DASAN
PN460
So in your mind are the words is there any form of ambiguity about how 8.1 and 8.2 actually operate?‑‑‑With that word there? No.
PN461
Can I take you to PD8, if I may, just the next document? And this concerns correspondence, without prejudice correspondence, from the AFAP. Have you got a copy of that, sir?‑‑‑Yes, I have that.
PN462
Can I take you to page 2 of the correspondence, halfway down, where it reads, if I may quote:
PN463
We may also note the following issues that have been rescinded in the last part of last week, dot point, grey days. The grey days clause has been moved from the definition section into a stand alone clause and has been redrafted by the RFDS. The parties have agreed on the wording of the clause and the AFAP sees no reason to change that drafting (although the AFAP has no objection to the original drafting being inserted as a stand alone clause).
PN464
Can you see that?‑‑‑Yes. Yes, sorry.
PN465
Mr Docking, that was did you say that was that an objection to the redraft of the November 13 drafting?‑‑‑From that, in particular, I saw the need to act on that with the removal of the proposed subclauses 8.3 and 8.4.
PN466
8.3 and 8.4? Can I now take you to the correspondence that was sent to Mr Molnar by myself dated 3 December, which is PD9?‑‑‑Yes, I have that.
PN467
Can I take you to point 4 of that letter?‑‑‑Yes.
PN468
I'll just for the sake of the Commission read that out, point 4, grey days ‑ ‑ ‑?‑‑‑Would you like ‑ ‑ ‑
PN469
You may?‑‑‑Sorry, would you like me to read it?
PN470
If you want to read that?‑‑‑Yes.
PN471
The RFDS will honour the previous drafting of the grey days clause and confirms the removal of the two paragraphs under clause 8.2, clauses 8.3 and 8.4 in the draft agreement which was sent to the committee on 13 November 2014.
*** PETER WILLIAM DOCKING XN MR DASAN
PN472
Did you agree to change anything else in 8.1 and 8.2?‑‑‑I do not recall agreeing to ‑ ‑ ‑
PN473
Were those your instructions at that time?‑‑‑Sorry, my instructions to?
PN474
To ‑ ‑ ‑?‑‑‑My plan my instruction was to take out 8.3 and 8.4.
PN475
Can I now take you to the current enterprise bargaining agreement which is PD2?‑‑‑I have that.
PN476
Can I again take you through clause 8 of that agreement?‑‑‑Yes.
PN477
Do 8.1 and 8.2 of the current agreement actually reflect the two clauses that were left behind?‑‑‑That is those clauses exactly.
PN478
And from your perspective, Mr Docking, there is no ambiguity in relation to the intent and operation of these two clauses?‑‑‑I believe there is no ambiguity.
PN479
Is there any other way in which clause 8.1 and 8.2 can be integrated that comes to mind?‑‑‑I can see a couple of words I'd like to change, but, no.
PN480
Can I put to you then that you have put to us so far that it's not a day off?‑‑‑Correct.
PN481
It's a work day and you say that the operation of 8.1 and 8.2, that there is no ambiguity in the way it's applied and the way it could be understood as they currently stand in the agreement?‑‑‑That is correct. And I will actually - I'm pleased that you used those words "is not a day off", but I recall those as being the words that were used by Mr Molnar's predecessor in discussion in the second what would have been the second meeting of the EBA negotiation process.
PN482
And that would be Mr ‑ ‑ ‑?‑‑‑Mr Laurie Cox.
PN483
‑ ‑ ‑ Laurie Cox or the predecessor to Mr Molnar. Between when those amendments were made to the draft enterprise agreement that is to remove clauses 8.3 and 8.4, how long was it before the agreement was actually put to a vote, do you know, or can you remember put to a vote of the pilots?‑‑‑It was put to a vote in December.
*** PETER WILLIAM DOCKING XN MR DASAN
PN484
And how did that vote go?‑‑‑It was knocked back.
PN485
It was knocked back?‑‑‑Yes.
PN486
So it failed?‑‑‑It failed, yes.
PN487
It failed. Were there further discussions between the parties which you were involved in subsequent to the agreement being knocked back?‑‑‑I can't recall what there may have been another meeting after that email went out and the changes made.
PN488
Was there industrial taken ‑ ‑ ‑?‑‑‑I'm sorry. If I can just sorry. The changes were made by the removal of those two subclauses and the EBA was put, the draft EBA was put to a vote.
PN489
And that's the vote that failed?‑‑‑That's correct.
PN490
Was there industrial action taking place at that stage?‑‑‑Yes, there was.
PN491
Was there further discussions in relation to the contents of that agreement that took place with the AFAP and the pilots after that?‑‑‑There was considerable more discussion that went took place after the vote was negative.
PN492
Throughout all of that period after the vote went down, was there any discussion about the definition of the substance of clause 8 ‑ ‑ ‑?‑‑‑I have ‑ ‑ ‑
PN493
‑ ‑ ‑ of the enterprise bargaining agreement?‑‑‑I have not been aware of any discussion of clause 8, subject to that or after that failure of the first draft to be voted up.
PN494
So at no stage did anyone raise with you the purpose or intent of the grey days clause in the agreement?‑‑‑That is correct.
PN495
Subsequently, there were other changes made to the agreement before it went up to the second round of votes?‑‑‑Yes. There was considerable changes made.
PN496
Was there any changes to clause 8?‑‑‑No.
*** PETER WILLIAM DOCKING XN MR DASAN
PN497
When it was put up the second time around, what happened then, Mr Docking?‑‑‑The second time around, the vote was in the affirmative and it was voted up.
PN498
It was voted up? And if I could take you back to the current enterprise bargaining agreement that was certified by the Commission on ‑ ‑ ‑?‑‑‑On the where's the date 1 May.
PN499
1 May? Thank you. If I may now take you to the current enterprise bargaining agreement, PD2 again. Can I take you to clause 16, if I may?‑‑‑Yes.
PN500
Could you, for the purposes of the Commission, explain how rosters are created as part of your operations in the Royal Flying Doctor Central Operations?‑‑‑The rosters are created as a draft or as a template with a pattern to them. I've got to say it follows a process I put in place at the Alice Springs base back in the dim, distant past when I was managing the rosters there and that is the pilot can look at his the line that he's allocated and predict where he's going to be further down the track.
PN501
How far further down the track, sir?‑‑‑That varies between which base you're at because one of the things that drives the roster cycle is the number of people that it takes to fill that roster and keep it rolling. For the Port Augusta base, it's six weeks, from memory. Alice Springs is nine weeks; Adelaide, I think, is eight.
PN502
For the purposes of the roster, can you tell the Commission whether it is a repetitive six week roster of pretty much the same cycle or is it something else?‑‑‑It's pretty much a repetitive six week cycle with minor variations where necessary to deal with things like approved annual leave, might be approved sick leave in advance, but other - - -
PN503
Long service leave?‑‑‑Long service leave, any of those sorts of things that will impact the roster. And again also a pilot may sort of say I know my roster cycle gives me these days off but I need to have this day off.
PN504
So in the overall structure of the roster, this roster you would say is probably set up in this repetitive basis how far in advance, sir?‑‑‑It's like the one in Alice Springs I've had some dealings with since I've been back here. I've not had any dealings with changes to the structure of the base roster for Adelaide and Port Augusta since I've been back at the RFDS this time. So the Alice Springs one, for instance, that was put in place about the middle of 2014.
*** PETER WILLIAM DOCKING XN MR DASAN
PN505
2014. What is the process when you want to bring in a change to the structure of the roster, the repetitive structure of the roster?‑‑‑Effectively it invites a consultation with the pilots. All the pilots at the base of that roster, or sorry affected by that roster and you know they'll be provided with a draft of what the changes will be and for their consideration very much the same as an EBA process. They're consulted and eventually it will be voted on.
PN506
Can I now take you to clause 16.2 of the enterprise bargaining agreement?‑‑‑Yes.
PN507
Can you just take a minute to run through 16.2 through to 16.2.5 please?‑‑‑Sorry, 16. - sorry, you want me to read - - -
PN508
No, I don't want you to read it, I just want you to just consider the contents for a minute or so?‑‑‑Yes.
PN509
You just told us about how the agreements that need to made each with various people around the place?‑‑‑Mm-hm.
PN510
Is that pretty much - does 16.2 pretty much set out the consulted processes that have to be undertaken before you can set the repetitive pieces of that - of the roster, or any changes to it?‑‑‑Effectively, subclauses 16.2.1 and 16.2.2 set the process by which any changes to that basic roster structure will be developed and put in place.
PN511
So in other words, can I take you back to the top of 16.2 if I may read:
PN512
Notwithstanding the provisions of CAO48 or any other prescription of CASA the following conditions shall apply.
PN513
Does that mean that those apply in perpetuity until such time that an agreement can be made to change them?‑‑‑That is my take on it. That is they will apply in perpetuity unless the Civil Aviation Safety Authority makes a regulatory change or whatever, that makes those rosters now illegal effectively.
PN514
So that that's the structure of the overall roster?‑‑‑Correct.
PN515
But that's quite different from the day to day operational needs of the roster?‑‑‑Indeed.
*** PETER WILLIAM DOCKING XN MR DASAN
PN516
So if somebody has a sick day or an annual leave day or some other entitlement, the roster is likely to change?‑‑‑Absolutely.
PN517
That does change?‑‑‑It does, and subclauses 16.2.3 through to 16.2.5 help address the process by providing for such changes.
PN518
Who's responsible for ensuring that there are enough line pilots to ensure that the roster is fulfilled, sir?‑‑‑In the strict legal sense, the CEO.
PN519
But on a day to day basis?‑‑‑On a day to day basis the senior base pilot is responsible.
PN520
Senior base pilot. People quite evidently do have personal circumstances where they have to take days off?‑‑‑Regularly.
PN521
Those adjustments are carried out by the senior base pilot?‑‑‑Correct.
PN522
Looking at the entirety - no, I'll come back a bit. Can I ask you to have a look at clause 16 again. Can I take you to 16.3 and 16.4?‑‑‑Yes.
PN523
Were these clauses added to the enterprise bargaining agreement from your recollection?‑‑‑There may have been changes to 16.3 but from memory that was in the previous agreement. 16.4, if my recollection is correct, was a new clause that we added.
PN524
What is the purpose of 16.4 entitled "Roster reserve periods". What is that and how does that operate, sir?‑‑‑What it provides for is it recognises - I sought to have this in here to recognise there will be occasions where there may be excess pilots available over and above what's required to fill the basis roster structure. The manning of each base will generally provide sufficient numbers of pilots to enable, say two pilots to be on leave at one time. If we only have one pilot on leave then I've got another pilot around who's again surplus to the requirements to fill that basic roster structure. So 16.4 was put into this agreement to enable us - to more clearly enable us to be able to assign a generic reserve day if you like to a pilot so that if there is an extra need over and above the roster we can step in for that. Or else if somebody does go sick, somebody can come in they are rostered reserve and fill that.
PN525
Can I take you back again to the top end of 16.1 and 16.2?‑‑‑Yes.
*** PETER WILLIAM DOCKING XN MR DASAN
PN526
In your mind is there any form of ambiguity about how these clauses actually operate in real life?‑‑‑16.1 and 16.2 I have no problem with those.
PN527
16.3, anything down there that has ever been raised with you about being - about it being ambiguous about the way subject days are set?‑‑‑No.
PN528
No?‑‑‑No.
PN529
What about in the previous agreement, anyone ever raise an issue with you, sir, about any of those clauses?‑‑‑I am not aware of any.
PN530
If I take you now to - since the formation of this enterprise bargaining period, has anyone ever raised 16.- - any issues with 16.4 with you?‑‑‑Sorry, 16.4? No.
PN531
Has anyone ever raised with you a link between clause 8 dealing with grey days and the setting of rosters in clause 16 of the agreement? About whether grey days would have an impact of the setting, the general setting of rosters governed by clause 16 of the agreement? Anyone ever make that link?‑‑‑The only discussion there would be at an upper management level because it helps define how many pilots we need.
PN532
But has any of the pilots - - -?‑‑‑No.
PN533
Any line pilots raised those things with you?‑‑‑Never.
PN534
Has any senior based pilots raised those things with you?‑‑‑No.
PN535
I've got no further questions, sir.
PN536
THE COMMISSIONER: Mr Molnar, I think our operational requirements have probably led to a five minute comfort break at this point. So we'll adjourn briefly. Mr Docking, you're under oath, you remain under oath and what that means is you shouldn't discuss your evidence with anyone during the short break?‑‑‑Yes, sir.
Very well.
<THE WITNESS WITHDREW [12.19 PM]
SHORT ADJOURNMENT [12.19 PM]
*** PETER WILLIAM DOCKING XN MR DASAN
RESUMED [12.30 PM]
<PETER WILLIAM DOCKING, RECALLED ON FORMER OATH [12.31 PM]
CROSS-EXAMINATION BY MR MOLNAR [12.31 PM]
PN538
THE COMMISSIONER: Yes, please be seated. Yes, Mr Molnar.
PN539
MR MOLNAR: Thank you, Commissioner. I'll just hand up if I can a copy of Mr Remilton's witness statement to the witness. If I could take you to page 75 of the witness statement. Have you got that?‑‑‑Yes.
PN540
That's the original log of claims that the Federation sent to the RFDS, isn't it?‑‑‑That would be.
PN541
If you could look at item 8 of that log of claims, yes?‑‑‑Yes.
PN542
It says that - well, I'll paraphrase:
PN543
Grey days should only be used to get the crew back to home base and not to be called out on other tasks.
PN544
?‑‑‑Correct.
PN545
So you're aware that that was the purpose of why - well that was the position that the Federation had in relation to grey days, from that log of claims?‑‑‑Yes, that's fine.
PN546
Go to page 78 and these are minutes of the first negotiation meeting that were held?‑‑‑Yes.
PN547
A couple of things. At item 2.10?‑‑‑Sorry, which page are you on?
PN548
Sorry, 77?‑‑‑77.
PN549
Yes. Under 2.10 the RFDS at this stage has no substantive list of issues, it has no log of claims. That's correct, isn't it?‑‑‑Correct.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN550
Then if you go to 3.8 and there's a discussion about the pilot's log of claims in relation to grey days there?‑‑‑Yes.
PN551
You'll see a comment by Allan Benn who was the old chief pilot, that's correct, isn't it?‑‑‑Correct.
PN552
He says that traditionally within reason pilots have been required to attend meetings on base on a grey day?‑‑‑Yes.
PN553
But he doesn't say that they could be required to go on flight committees or be on standby on a grey day, does he?‑‑‑He doesn't say that, no.
PN554
No, he doesn't say that. Then after that comment of Allan Benn, Philip Remilton states that if there's going to be a requirement for pilots to undertake duties on a grey day then there must be clarity surrounding this definition?‑‑‑Mm-hm.
PN555
I put it to you that he's referring there to pilots being required to attend meetings on base on a grey day, rather than any sort of other duty?‑‑‑That's probably a fair assumption.
PN556
That's a fair assumption, yes. Then if I could take you to page 84?‑‑‑Yes.
PN557
At item 5.7 the RFDS confirms yet again that it doesn't have a position regarding the matter of grey days?‑‑‑Mm-hm.
PN558
It's a matter for ongoing discussion, and still at this point the RFDS haven't put forward any claim in relation to grey days, have they?‑‑‑No.
PN559
Then if I can take you to page 107?‑‑‑Yes.
PN560
This is - these are the minutes of meeting number 5 in January 2014?‑‑‑Yes.
PN561
At paragraph 2, Sathish Dasan acknowledges receipt of a document distributed by me, via email. Do you recall what that document was?‑‑‑I can't recall what that document was. Should I?
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN562
Probably but anyway. If I take you further down to item 2?‑‑‑I know what it might have been. Sorry, further down item 2, yes.
PN563
The second last paragraph on page 107?‑‑‑Mm-hm.
PN564
Laurie Cox states that that document was a compilation of what has been discussed to date and the pilots have made no secret of the fact that they want to use the Western Op EBA as their position?‑‑‑Yes.
PN565
You're aware that the Western Operations agreement was being put forward as a basis by the AFAP?‑‑‑Yes.
PN566
Then if I take you to page 115?‑‑‑Yes.
PN567
Sorry, page 117?‑‑‑Yes.
PN568
These are the minutes of the sixth negotiation meeting and at item 2.8 you will see that the Federation proposed a clause for the definition of grey days?‑‑‑Mm-hm.
PN569
We tied in the concept with the second paragraph of our clause, we tied grey days into a day in lieu entitlement?‑‑‑Sorry, where are you saying that is?
PN570
In the second paragraph of the AFAP draft?‑‑‑Yes.
PN571
We referred to whatever would be the toil clause, the time off in lieu clause?‑‑‑Yes.
PN572
Then below that you've got the RFDS proposed clause?‑‑‑Mm-hm.
PN573
The second paragraph of that clause doesn't include the word "completed" before "rostered stand by period"?‑‑‑That's correct.
PN574
If I take you to page 125?‑‑‑Yes.
PN575
Sorry, I mean 139?‑‑‑139.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN576
Page 139?‑‑‑Yes.
PN577
You'll see at item 2 there's a table that shows the status of negotiations at that point?‑‑‑Correct.
PN578
You'll see at 5.10 it's agreed to the inclusion of a definition for grey day?‑‑‑Mm-hm.
PN579
That grey day definition is the one that was put forward by the RFDS previously?‑‑‑Correct.
PN580
So as at 4 July 2014, we've got agreed words for grey day?‑‑‑For a definition.
PN581
For a definition. Then if I take you to page 187 you've got a copy of a draft agreement that was drafted by the RFDS. If you go to page 183 it was sent by Belinda Richards to everyone?‑‑‑Yes.
PN582
At page 187 you've got the agreed words in 5.10?‑‑‑Correct.
PN583
That doesn't included the word "completed" before "rostered standby period", does it?‑‑‑Yes, also correct.
PN584
Then if I take you to page 214 and that page is an email from the RFDS or its solicitors?‑‑‑Mm-hm.
PN585
Sending round an EBA for our consideration. If I take you to point 7 of that email:
PN586
He informs us that grey days have been taken out of the definition section and inserted as a standalone clause for the purpose of providing clarity.
PN587
Yes?‑‑‑Correct.
PN588
Then if we go to page 222?‑‑‑Yes.
PN589
And we've got the RFDS's proposed clauses there?‑‑‑Correct.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN590
As you've already stated, there's a new addition of 8.3 and 8.4?‑‑‑Yes, correct.
PN591
There's also the addition in 8.2 of the work completed?‑‑‑Correct.
PN592
You'd agree, wouldn't you, that if 8.4, sorry if 8.3 was still in the agreement, that would explicitly support what you're arguing for now, wouldn't it?‑‑‑It would reinforce it.
PN593
Well that's assuming that the current agreement allows you to do what you want to do, but my question is 8.3 is explicit recognition of the way you'd like this clause to operate?‑‑‑The way it should operate, yes.
PN594
You understand what I mean. Can I take you to page 251 and that's a letter that the AFAP wrote to your solicitors, and on the second page of that letter the AFAP raises an objection to the grey days clause, doesn't it?‑‑‑Yes.
PN595
It says it's been moved from the definition section into a standalone clause and has also been redrafted by the RFDS?‑‑‑Yes.
PN596
Then it says the parties have agreed on the wording?‑‑‑It does say that.
PN597
And that it shouldn't therefore be changed?‑‑‑Correct.
PN598
So the AFAP wanted the original drafting, didn't it?‑‑‑As a definition.
PN599
It wanted the original drafting?‑‑‑As a definition.
PN600
What does that mean?‑‑‑As a definition, the original drafting works. As a clause, it doesn't.
PN601
On what basis do you say that?‑‑‑Without the word "completed" in that text, it does not define how a Grade A is applied. Without a clause that defines how Grade A is applied, it is a moot point.
PN602
I don't understand, repeat that?‑‑‑Very good. A Grade A is a concept, you understand that?
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN603
Keep on going?‑‑‑And for it to be valid and to actually have meaning given to that concept, certain conditions must be met prior to that - - -
PN604
So what you're saying is that it didn't make sense because those pre-conditions weren't the ones you wanted. If the word "completed" wasn't there, the clause could still operate quite well. It would just operate in different circumstances, wouldn't it?‑‑‑It would be applied exactly the same as it is now with the word "completed" in there.
PN605
Would it?‑‑‑It would have to be.
PN606
Well why is - then why is it necessary to have the word completed in there?‑‑‑For clarity.
PN607
Well that isn't what you said just before. In response to Mr Dasan you said that that word was so important that it had to be included otherwise the clause wouldn't make sense. So it's not just there for clarity is it?‑‑‑All right, it's clarity is extreme. To make it make sense it's got to have that word in there.
PN608
No, no, it's not necessary for it to make sense. It's necessary to support your interpretation of what it should be but the - - -?‑‑‑No.
PN609
It does?‑‑‑It supports the legal - it supports - - -
PN610
The clause can operate quite well without the word "completed", it just means that it operates in a different set of circumstances?‑‑‑Can I ask you - can I ask you a question?
PN611
No, I'm the one that's asking you the questions?‑‑‑Right, sorry.
PN612
Do you agree that the clause can operate even if it doesn't include the word "completed"?‑‑‑Not effectively.
PN613
What do you mean by not effectively?‑‑‑The word "completed" there defines that certain parameters must be met for a Grade A - - -
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN614
Yes, and that brings me back to the point that those parameters are the ones that you want, that if the word "completed" isn't there, it just means that there are a different set of parameters, aren't there?‑‑‑Yes. It relies on a task or a set of work related activities being rostered. I can roster them to my heart's content but unless they're completed - - -
PN615
If a grey day is to be rostered following a rostered standby period or actual duty, there's no inclusion of completion there, the clause can still operate can't it?‑‑‑Yes, it will tell you how to roster.
PN616
Yes, thank you. Then what does the purpose of actual duty mean? What's that in there for?‑‑‑The person's actually got to fulfil the task. Actual duty is as opposed to standby. Standby or actual duty can be - - -
PN617
Think of the clause without the word "completed"?‑‑‑Yes.
PN618
There are two circumstances in which a grey day will occur?‑‑‑Mm-hm.
PN619
One is where it follows rostered on-call duty?‑‑‑Correct.
PN620
One is there actual duty?‑‑‑Correct.
PN621
Now it can work in those circumstances, can't it, without the word "completed"?‑‑‑(No audible reply)
PN622
It's obvious, it can?‑‑‑No.
PN623
Then why on earth would you agree - - -?‑‑‑Where it's - where it's - - -
PN624
Why on earth would you put forward a clause that doesn't work?‑‑‑I put forward a clause that works, not on the definition.
PN625
If it's in the definition section or not, it still gives rise to the same entitlement. I mean it's in the definition section but not referred to anywhere else in the agreement?‑‑‑That was the way it was - - -
PN626
Yes, so what suddenly changes when it's put in there as a standalone clause? Explain that to me?‑‑‑That gives it an effect.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN627
What, and it had no effect in the definition clause?‑‑‑Not really.
PN628
How can you say that?‑‑‑As a definition it defines when a grey day is going to be rostered. It will be rostered after the roster's actually put somebody on standby period or given them actual duty.
PN629
But no, we're talking about why doesn't it have effect in the definition. Why is there this sudden change in the clause by taking it out of the definition section?‑‑‑Well, sorry, you're the- - -
PN630
No, I'm asking you, because this is your evidence. You're giving the reason that there was some change.
PN631
MR DASAN: Commissioner, I think the question has been asked and answered on three occasions.
PN632
THE COMMISSIONER: Well yes, but there still remains some reasonable ground to refer, explore this.
PN633
WITNESS: I'll take it on your advice that it can lead as a definition and still be imposed.
PN634
MR MOLNAR: So by that I can take it you agree with me that by moving it from the definition section into a stand-alone clause, that fact alone, doesn't change the meaning?‑‑‑It doesn't change the meaning.
PN635
So if I take you to page 253?‑‑‑Yes.
PN636
And this is the letter where the AFAP - you're aware your solicitors responded to the AFAP letter, and at paragraph 4 you address our issues with the proposed gradings. Yes?‑‑‑Correct.
PN637
And the RFDS says the RFDS will honour the previous drafting of the Grade A's clause?‑‑‑It does say that.
PN638
It does say that? And then it goes on to say and it also confirms the removal of the two paragraphs under clause 8.2?‑‑‑Correct.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN639
Yes. But that isn't what was happening. The RFDS didn't honour the previous drafting of the clause?‑‑‑In effect, it probably overlooks the word "completed" was there.
PN640
It overlooks? So are you saying that it was by mistake that the word "completed" was in there?‑‑‑No.
PN641
So in actual fact, the RFDS decided to instruct their solicitors to write to us and say, "The RFDS will honour the previous drafting". And then it gave instructions not to honour the previous drafting?‑‑‑I cannot recall what discussions took place around that time.
PN642
Well, but you would agree that the RFDS didn't honour the previous drafting. In fact, your words were, "It overlooked the fact that the word 'completed' is now in there". And yet you say that wasn't a mistake. What's the difference between an oversight and a mistake? Was it a typographical error that it was still in there?‑‑‑No it wasn't typographical.
PN643
It wasn't typographical?‑‑‑No.
PN644
So it was in there on purpose?‑‑‑I think I've actually been saying that my view was, that word was needed to give the clause meaning.
PN645
Then you've instructed your solicitors to inform us of the fact that you're going to do something, knowing that you won't do it? What does that mean, "The RFDS will honour the previous drafting"? That means it will revert to the previous drafting, as was agreed, doesn't it?‑‑‑Yes, I guess that does.
PN646
Right. But you know that you weren't going to follow through with that. You knew at the time it wasn't an oversight that the word "completed" was in there. It wasn't a mistake, it wasn't a typographical error. You kept it in there?‑‑‑Correct.
PN647
Contrary how do you explain- - -?‑‑‑Like I said, I- - -
PN648
- - -this statement here with the fact that "completed" is still in there?‑‑‑Like I said, I cannot explain it.
PN649
You can't explain it?‑‑‑No. I cannot remember what discussions we had about the way that would be changed.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN650
Well, you would agree that it is inconsistent, isn't it?‑‑‑Yes.
PN651
So there's only one real rational explanation for that, isn't there, that you informed the AFAP that you were going to do something, knowing that you weren't? I can't think of any other explanation, can you? Don't look at Mr Dasan?‑‑‑I really actually wasn't.
PN652
MR DASAN: Your Honour, the question has been asked and answered on repeated occasions, right? Effectively we're having cross-examination and re-examination of the witness based on a matter that the AFAP failed to pick up in the first place. But imputing anything in relation to how things were done or not done, the question ultimately comes down to what was the clause that went up to the vote.
PN653
THE COMMISSIONER: That's a submission you can make in due course. I understand, but I don't think there's a valid objection to the question.
PN654
MR MOLNAR: No, I don't either?‑‑‑Sorry, run that past me again.
PN655
Well, I put forward to you that there was, the only rational explanation for the inconsistency between what is written in paragraph 4 of this letter being the RFDS will honour the previous drafting of the Grade A's clause, and the fact that the word "completed" was never removed, the only rational explanation for that is that you informed the AFAP that you were going to do something and yet you knew that you weren't going to do it?‑‑‑My recollection from that period is that the only discussion which took place around the removal of clause subclause 8.3 and 8.4- - -
PN656
Yes, that doesn't answer the question. That's the only rational explanation, isn't it? That you told the AFAP something untruthful?‑‑‑That would be the outcome.
PN657
No, just answer the question.
PN658
THE COMMISSIONER: Mr Molnar, an objection hasn't been taken on this basis, but look, I think otherwise we're going to cost look, the reality is that this letter wasn't written by the witness, so there are a range of potential explanations for the dynamic that you've just put forward. I'm not saying you're not entitled to put the version that you are, but I just don't think it's reasonable or fair to say it's the only scenario in which that might occur. So- - -
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN659
MR MOLNAR: Very well, Commissioner.
PN660
THE COMMISSIONER: Look I think, quite frankly, it's a matter for submissions, and there are issues as to what weight goes to evidence about what parties say or do in the course of a negotiation. But as I said, I'm not trying to stop you putting your version, but I just don't think it's actually it isn't fair to the witness to say they are the only explanations.
PN661
MR MOLNAR: Very well, Commissioner.
PN662
THE COMMISSIONER: Bear in mind, he didn't author the letter.
PN663
MR MOLNAR: You did instruct Norman Waterhouse to write this letter, didn't you?‑‑‑They would have been instructed to write the letter to respond.
PN664
By who?‑‑‑Effectively by me.
PN665
By you? Yes, so they were your instructions to write those words?‑‑‑To write the letter.
PN666
Including those words?‑‑‑Yes.
PN667
Yes. And given the statement the RFDS will honour the previous drafting of the Grade As, is that something that the AFAP was entitled to believe would happen?‑‑‑That is appropriate.
PN668
It is? Also, on page 253 in that letter it refers to a communication between the RFDS CEO and all pilots, doesn't it, second-last paragraph?‑‑‑Correct.
PN669
It refers to the RFDS acknowledging errors in the draft document, doesn't it?‑‑‑It does.
PN670
If I could just hand you a document, Mr Docking? You've seen this document before?‑‑‑I would have, yes.
PN671
Yes. And this is a letter or an email from John Lynch to all pilots. The subject matter is EBA clarification?‑‑‑Correct.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN672
If you go up to the fifth paragraph from the bottom, commencing, "I was very surprised"?‑‑‑Yes.
PN673
And there, Mr Lynch says he:
PN674
Was surprised to see communications from the AFAP saying that the pilot group didn't accept the new draft enterprise agreement
PN675
?‑‑‑Correct.
PN676
Yes. And then the next paragraph he says:
PN677
Accordingly, we withdrew the draft EA from a vote.
PN678
?‑‑‑Yes.
PN679
And then he says:
PN680
The AFAP in its letter to us has clearly articulated the areas of concern, and I must say, some concern to me as well.
PN681
?‑‑‑Correct.
PN682
And so then he says, "I'm going to start asking the management team". And then in the next paragraph, he says that:
PN683
There were errors made in the translation from the in principle agreement to the draft EA sent out.
PN684
?‑‑‑Correct.
PN685
And at the bottom of that paragraph he says:
PN686
When I read some of the clauses referred to I could certainly understand and appreciate your individual and collective position.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN687
Do you know which clauses he was referring to?‑‑‑I cannot recall what clauses he was referring to.
PN688
Right. There aren't many clauses in our letter that we take issue with, but one of them is the Grade A's clause, isn't it?‑‑‑Yes.
PN689
Yes. So it's conceivable that he was referring to the Grade A's clause?‑‑‑There could be some reference to that.
PN690
Yes.
PN691
MR DASAN: I'd object to that, your Honour. I mean, effectively he's asking Mr Docking to actually reflect on an email sent out by Mr Lynch as to what Mr Lynch may or may not have meant in relation to that particular paragraph.
PN692
MR MOLNAR: I have no further questions on this document.
PN693
THE COMMISSIONER: Well look, for what it's worth, there is substance in that objection. I think it's speculation unless there's some other basis to support the proposition that the witness knew what was being referred to.
PN694
MR MOLNAR: Yes. I'd like to tender this document.
PN695
THE COMMISSIONER: Any objection?
PN696
MR DASAN: No objection.
THE COMMISSIONER: All right, the email, I think original email from Mr Lynch sent on 3 December, be admitted and marked Exhibit A3.
EXHIBIT #A3 EMAIL FROM MY LYNCH SENT 3 DECEMBER 2014
PN698
THE COMMISSIONER: Mr Molnar, if you're about to change subjects, it's probably an appropriate time for lunch.
PN699
MR MOLNAR: Yes.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN700
THE COMMISSIONER: And I take it you'll be a little while, will you?
PN701
MR MOLNAR: Not too much longer, but yes, lunch would probably be suitable.
THE COMMISSIONER: All right, we'll adjourn till 2.
<THE WITNESS WITHDREW [1.03 PM]
SHORT ADJOURNMENT [1.03 PM]
RESUMED [2.00 PM]
<PETER WILLIAM DOCKING, RECALLED ON FORMER OATH [2.00 PM]
CROSS-EXAMINATION BY MR MOLNAR [2.00 PM]
PN703
THE COMMISSIONER: Yes, Mr Molnar.
PN704
MR MOLNAR: Mr Docking, you mentioned earlier that grey days A's, as subject matter, didn't form part of the log of claims that the RFDS put forward in negotiating this agreement?‑‑‑Correct.
PN705
Prior to this agreement being introduced, we've also established that there was no definition of grey days A's in the previous agreement. That's correct?‑‑‑That's correct.
PN706
And Mr Remilton has given evidence that, as far as he is aware, when a pilot has been unfit for duty on a nightshift prior to a grey day, the grey day has not been reassigned and no personal leave has been taken in relation to that grey day?‑‑‑I'll take his word for that, yes.
PN707
Right. Do you disagree with that?‑‑‑I'm aware that there was a practice of that.
PN708
There was a practice of that, that was the status quo, prior to this agreement being implemented?‑‑‑I wouldn't say it was valid in every case.
PN709
Tell me more about the practice then, I mean- - -?‑‑‑People would get asked to work on a grey day.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN710
And what would happen if they refused?‑‑‑I'm not actually able to answer that. I'm not aware of it ever happening.
PN711
Okay. Would you disagree with what Mr Remilton had said, that in the past, if a pilot's been unfit for duty on nightshift, prior to a grey day, the grey day has not been reassigned and no personal leave has been deducted in relation to the grey day?‑‑‑As I said, that is probably often the case.
PN712
So that was the environment in which this negotiation was conducted, in relation to grey days?‑‑‑Okay.
PN713
No, do you agree with that?‑‑‑Yes.
PN714
Yes. So if that was the status quo prior to this agreement being negotiated and approved, then- - -
PN715
MR DASAN: I object to that question. There was no status quo. Mr Docking's already answered that there were other practices. There was no status quo.
PN716
THE COMMISSIONER: And that's a matter for evidence.
PN717
THE COMMISSIONER: All right, well- - -
PN718
MR DASAN: It's not sir, it's a matter of a question of a follow-up question being asked in relation to Mr Docking, where he's already dealt with that.
PN719
MR MOLNAR: There was a practice?
PN720
THE COMMISSIONER: Yes. I think if you open up the presumption and the question, then there won't be any objectional grounds.
PN721
MR MOLNAR: There was a practice that the environment in which this negotiation took place was in accordance with the way Mr Remilton has put it?‑‑‑I accept that.
PN722
Yes. So you would agree, wouldn't you, that the inclusion of clause 8 in the current agreement is an extension of the rights of the RFDS from that previous practice?‑‑‑It's stating what the rights of the RFDS are.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN723
No, that's not the question I asked. There were a broader range of rights than was previously the practices put by Mr Remilton, weren't there?‑‑‑I suppose it was an unwritten custom and practice.
PN724
Well, that's what grey days were, weren't they?‑‑‑They were.
PN725
Prior to this agreement, they were an unwritten custom and practice?‑‑‑Correct.
PN726
And you would agree that the current drafting of clause 8 is an extension of that?‑‑‑It realigns it. Sorry- - -
PN727
What do you mean by "realigns"?‑‑‑What do you mean by "extension"?
PN728
Well, previously, under the old practice, a pilot would not be able to be reassigned on a grey day if they were sick the night before?‑‑‑There as nothing to stop them being reassigned.
PN729
But it wasn't the practice. You've just said, it wasn't the practice?‑‑‑That is correct, but it wasn't that they couldn't be reassigned.
PN730
So this clause, are you saying, reflects the previous practice?‑‑‑It reflects the fact that they could be reassigned.
PN731
Does it reflect the previous practice of the RFDS, prior to this EBA? Yes or no?‑‑‑Not not in every case.
PN732
No?‑‑‑It's not in every no, it's- - -
PN733
No, so you're saying no?‑‑‑There are I would have to go back through the records to determine when pilots have taken a day off on a nightshift, taken a rostered sick leave day on a nightshift and then not been reassigned a duty on the grey day.
PN734
But you've already said- - -?‑‑‑It does happen.
PN735
- - -what your understanding of the practice was?‑‑‑The practice was that wouldn't get- - -
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN736
And the practice was in accordance with the way Mr Remilton has put it?‑‑‑The practice was that wouldn't get pushed, but pilots would get asked, could get asked to work on a grey day.
PN737
But as far as you're aware, they never did?‑‑‑That would be wrong.
PN738
That would be wrong. So you are aware of where they were?‑‑‑There would be occasions when a pilot has been asked to work on a grey day.
PN739
Has been asked?‑‑‑Yes.
PN740
And what would happen if they refused?‑‑‑I would expect, possibly in those days, nothing.
PN741
That was the practice?‑‑‑Yes.
PN742
But under this current clause, a pilot can't refuse, can they?‑‑‑They can take another personal leave day.
PN743
Whereas before they didn't have to take the other personal leave day? What if they weren't sick on the grey day, originally rostered grey day? Are they still entitled to a personal leave day, even though they don't fulfil the requirements for taking one? They're sick the night before?‑‑‑It wasn't forced.
PN744
No. I'm saying now?‑‑‑Sorry, if they're- - -
PN745
You've said that if a pilot is sick the day before a grey day, they can be reassigned or if they want the day off, they take another personal leave day?‑‑‑Correct.
PN746
What if they're not sick?‑‑‑They could actually have it as a day off. It would meet the criteria. They would have I can give them that day off and they would have two open nights either side of it.
PN747
What, it turns into a- - -?‑‑‑It would be a legitimate- - -
PN748
Turns into an RDO?‑‑‑You could turn it into an RDO because it legitimately meets the law.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN749
Sorry, explain the "legitimately meets the law". That do you mean by that?‑‑‑To be a valid rostered day off, to be a valid day off, the pilot must be due free of duties from no later than 2200 the night before the day off to no earlier than 0500 the day after.
PN750
Okay, so you're saying then that the options for a pilot on a grey day, when they've been unfit for duty the night before are become re-assignable, take it as another personal leave day or get it reassigned as an RDO?‑‑‑Or a toil day.
PN751
Or a toil day?‑‑‑Correct.
PN752
Where does the EBA say you can do all that?‑‑‑Like the previous one would, so I can't there is no problem with sorry, I can't work out where you're going with that because the EBA isn't that specific in spelling out what we can do with each shift.
PN753
Okay, so it doesn't say it explicitly?‑‑‑Correct.
PN754
Right, okay. You say that the clause 8.2, without the word "completed" there, can't work. That's what you said before?‑‑‑Practically, it- - -
PN755
Well, yes or no? That's what you said before, it can't work?‑‑‑Yes, all right. Yes, I said that before, yes.
PN756
Right. So the addition of the word "completed" was in your claim of the RFDS, wasn't it?‑‑‑Correct.
PN757
Right. And the only way you informed the AFAP of that new claim is by putting it into a draft agreement?‑‑‑Into a tracked changes draft.
PN758
It was never really discussed, was it, prior to its being inserted?‑‑‑To that point, no.
PN759
You didn't think to alert the AFAP as to the effect of it?‑‑‑I've got to say that I did have the opinion that, or the understanding that the AFAP had read the draft document that had the two additional clauses put into it and because the AFAP specifically asked for those to be removed, had read that clause in detail.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN760
Well, we asked for a bit more than that, didn't we? We asked for it to be put back to its original drafting, didn't we?‑‑‑Correct.
PN761
Yes. Which you said you would do, or the RFDS said it would do?‑‑‑Correct.
PN762
Yes. But didn't?‑‑‑Correct.
PN763
So we've got a new claim the put forward by the RFDS that is introduced by amending a document, in a vacuum of any other discussions about it, we object?‑‑‑Sorry, you object.
PN764
Well, we did object, didn't we?‑‑‑If you say return it to its previous drafting, then I suppose that's objecting.
PN765
Yes. We asked for it to be returned to its previous drafting, yes?‑‑‑Yes.
PN766
Right. And yet it doesn't revert to its previous drafting and there's still no explanation at the time or since, of why that claim remained?‑‑‑Correct.
PN767
Right. That was a little opportunistic, wasn't it?‑‑‑It was unfortunate.
PN768
Why do you say it was unfortunate? Unfortunate for who?‑‑‑That we're at this point of discussing this now because it had actually been out there quite clearly, enunciated, that there was a change.
PN769
So you don't think it was opportunistic on the part of the RFDS?‑‑‑No.
PN770
Okay. In relation to the way rosters are built, there are various reasons why a pilot may not be assigned duties. One of them might be annual leave?‑‑‑Correct.
PN771
Personal leave?‑‑‑Correct.
PN772
Bereavement leave?‑‑‑Not when the roster's built.
PN773
Not when the rosters are built. Annual leave though, when the roster's built?‑‑‑Yes.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN774
Mr Remilton's given evidence that the only absences that might occur in a roster on the day of operations, so once a roster's been built, would be personal leave? Yes? You'd agree with that?‑‑‑Correct.
PN775
Bereavement leave, correct?‑‑‑Yes.
PN776
Where a pilot exceeds their flight duty hours?‑‑‑Correct. Well, they don't exceed it, they get close to it.
PN777
Or get close to it, yes?‑‑‑Thank you.
PN778
Yes, quite right, yes. But they're really the only circumstances- - -?‑‑‑Yes.
PN779
- - -that a roster would have to change on the day of operations?‑‑‑Yes.
PN780
Right. Now, prior to this EBA being in place, those same things would have happened, wouldn't they?‑‑‑Correct.
PN781
Right. And you've said that the practice was that a pilot didn't have to be made re-assignable on a grey day, if they were unfit the night before?‑‑‑That is- - -
PN782
Yes? That's what you've said?‑‑‑It wasn't explicitly written that the pilot was- - -
PN783
There was a practice?‑‑‑Yes.
PN784
And the RFDS seemed to cope quite well, didn't it?‑‑‑Can you define that?
PN785
Well, it didn't feel the need to agitate this issue? Didn't feel the need to force pilots to come into work?‑‑‑Not previously not previously.
PN786
Right. So what's I mean, you've said in your witness statement that it's crucial that the RFDS has this flexibility but it survived for a long time without it, didn't it?‑‑‑We've also introduced some additional costs into this through this EBA and there was a number of trade-offs for that and also they impact on the viability of, you know, how closely we should monitor our work practices.
*** PETER WILLIAM DOCKING XXN MR MOLNAR
PN787
How often would it happen, in your experience, that a pilot is unfit for duty on the nightshift prior to a grey day?‑‑‑It depends on the pilot. Some of them, reasonably regular.
PN788
How many?‑‑‑That's not something I can put a number on without checking the records.
PN789
All right. So how much that's enough about that. Just one last question. So you're saying that the circumstances that the RFDS finds itself have changed so much that you need this extra flexibility?‑‑‑The flexibility is needed.
PN790
But you're saying that that's a recent thing?‑‑‑Correct.
PN791
The RFDS didn't need this flexibility prior to this EBA?‑‑‑It wasn't needed and it probably still isn't needed.
PN792
Okay. So when you say, or maybe it's Mr Vaughan that says it, that it's crucial. Is it crucial that you need these pilots to work on their grey day? You've just said it's not really needed?‑‑‑It's not that's probably not a word that I would have used.
PN793
No, it's not crucial, is it?‑‑‑It can be, at times. Like I said before, in answer to a certain question before, I expressed that where somebody calls in sick for, let's say a nightshift, to fill that hole in the roster you've got to make significant changes to try and find somebody, pull them out of their rostered shift, pull them off a day off.
PN794
Which the RFDS have been doing for years prior to this EBA being put in place?‑‑‑Correct.
PN795
It's not crucial?‑‑‑Okay, I'll accept that, it's not crucial.
PN796
I've no further questions.
THE COMMISSIONER: Re-examination?
RE-EXAMINATION BY MR DASAN [2.18 PM]
*** PETER WILLIAM DOCKING RXN MR DASAN
PN798
MR DASAN: Mr Docking, since the log of claims put out by the AFAP and the pilots came in, there've been numerous changes to the enterprise bargaining agreement?‑‑‑Many.
PN799
Some of them that apply directly to the log of claims?‑‑‑Some do.
PN800
And some that don't apply to the log of claims- - -?‑‑‑Correct.
PN801
- - -or never were on the log of claims?‑‑‑Correct, they were things that were opportunistically put up.
PN802
There were also a series of things put up by the RFDS that ended up in the agreement that was never on a log of claims, was it in the agreement?‑‑‑Correct.
PN803
Yes. And you would accept that that would be the way enterprise agreements are negotiated, wouldn't you?‑‑‑This is my first enterprise agreement, I would accept that.
PN804
Yes. Going back to the email of 13 November, you might have that in front of you, the one that was sent with the four subclauses to clause 8?‑‑‑Yes.
PN805
MR MOLNAR: Where is that, sorry?
PN806
MR DASAN: The one, the 13th- - -
PN807
THE COMMISSIONER: It's PD7.
PN808
MR DASAN: P7?‑‑‑Correct.
PN809
Right? The issue of the clarity was that that was how your understanding of how a grey day should work, isn't it?‑‑‑Correct.
PN810
Were there any other, at any stage, any other versions of how a grey day should work ever put into the agreement, or suggested for inclusion in the agreement?‑‑‑No, no.
*** PETER WILLIAM DOCKING RXN MR DASAN
PN811
Did at any stage, the AFAP or any of the bargaining pilots ever put up a proposal about what was the custom and practice during the negotiations?‑‑‑No.
PN812
For inclusion within the agreement?‑‑‑No.
PN813
So the first time that, or rather in completion, there were two clauses that were first created early in 2014, dealing with 8.1 and 8.2?‑‑‑Correct.
PN814
As a clause put up for negotiation? Subsequent to that, two other clauses were put up?‑‑‑Correct.
PN815
In each of those cases, you drafted those clauses, didn't you?‑‑‑Yes.
PN816
Right, thank you. When we if you look at PD8, I'm referring to PD8 here. It's the letter from the AFAP?‑‑‑Yes.
PN817
When that letter was received, at that stage raising various changes to the agreement as such, the AFAP were reacting to a tracked change document, were they not?‑‑‑Correct.
PN818
Right. When the changes were made and the next agreement was sent out, there was also, as the normal custom was, another tracked change document went out, isn't it?‑‑‑That is correct.
PN819
The grey days were a new addition to the agreement, was it not?‑‑‑Yes.
PN820
There was never a clause in any of the previous agreements dealing with grey days, was there not?‑‑‑No, there wasn't.
PN821
So effectively, what the AFAP had before them was the removal of 3.4 and 3.3 8.3 and 8.4 with the other two clauses still tracked but remaining as they were, were they?‑‑‑Correct.
PN822
Anyone ever raise that with you?‑‑‑No.
PN823
Do you think that if it was going to cause such angst, that somebody would have raised that with you, either the pilots or the AFAP or somebody?‑‑‑That would have been my expectation.
*** PETER WILLIAM DOCKING RXN MR DASAN
PN824
Right. Then I take you now to - quite evidently at that stage, can I ask you that did you have, having made those amendments in relation to, after the correspondence was sent I'm talking about PD9 now, document PD9, that was correspondence from myself to Mr Molnar?‑‑‑Correct.
PN825
Right. Was there some feeling at the negotiation table at that stage, or rather your feeling, that with those concessions, that the agreement would get up, if it was put to a vote?‑‑‑There was certainly, from our side, a belief that it would.
PN826
Okay. And generally, the redrafted agreement was sent out and an email that was put to you by Mr Molnar earlier on, an email from Mr Lynch it's marked A3 at the moment. If you look at the email from Mr Lynch dated 3 December?‑‑‑Yes.
PN827
He talks about, if I may take you down to the same paragraph that Mr Molnar referred to, the second-last from the bottom:
PN828
"It is very clear to me now that some errors were made in the translation from the (indistinct) agreement to the draft EA sent out for discussion"
PN829
Blah, blah, blah. Do you see that paragraph?‑‑‑Correct. Yes, yes.
PN830
So the draft agreement was further changed after that, wasn't it?‑‑‑It was, yes.
PN831
Right. There were issues in relation to what back pay and a few other odds and ends were discussed, weren't they?‑‑‑Yes, there was quite a few, yes.
PN832
How many pilots involved in the negotiations again, if you can remind me, Mr Docking, apart from the- - -?‑‑‑Three at any one time.
PN833
Three at any one time, plus the AFAP?‑‑‑Correct.
PN834
Yes. So did anyone raise with you, apart from the other issues that were causing some angst out there, anybody raise with you at any stage about the word "completed" in clause 8.2 being an issue?‑‑‑That was never raised.
PN835
That was never raised. But it was a tracked document went out, it's there, it's there for the world to see, people raised a series of other things, nobody raised that with you?‑‑‑Correct.
*** PETER WILLIAM DOCKING RXN MR DASAN
PN836
Right. Anyone ever come back and ask you whether the word "grey day", because it's never been defined previously, should also be in the definitional column of the new enterprise agreement that was being drafted?‑‑‑Since the agreement's come out?
PN837
No?‑‑‑Prior- - -
PN838
During the negotiations?‑‑‑No, no.
PN839
So no one just for the sake of clarity for the Commission here, nobody at any stage, even after Mr Lynch has come back and said, "People have raised certain things with me"?‑‑‑Correct, I had no discussion with anybody in relation to- - -
PN840
Did anybody did the AFAP or any of the pilots, bargaining pilots, actually write back to you and say, or write back to anybody else and say, "We've got an issue with these things, A, B, C, D, E, F, G"?‑‑‑No. No.
PN841
Well, even if they didn't, did they ever raise the issue of the grey day?‑‑‑Not in relation to clause 8, no.
PN842
Right. You've already said in evidence to Mr Molnar a minute ago that there are different practices of how grey days were actually exercised?‑‑‑Correct.
PN843
So different senior base pilots would have done some different things?‑‑‑That is very correct, yes.
PN844
So one of the things that may have happened is that if someone had called in sick on the day before the grey day, that the senior base pilot would make a decision at that stage, as to whether that person will be called in or not?‑‑‑Yes, I think I get what you're meaning.
PN845
Right?‑‑‑Yes.
PN846
So similarly, there would be other locations where a person that was not barred from flying was effectively called in to fill up a shift that had occurred on their grey day, if they had the capacity to work that day?‑‑‑Correct, yes.
*** PETER WILLIAM DOCKING RXN MR DASAN
PN847
So effectively, the custom and practice that Mr Molnar talks about, is not the only custom and practice that was applicable at the central operations of RFDS, was it?‑‑‑It was variously applied.
PN848
Yes?‑‑‑There was no solid custom or practice.
PN849
And that custom and practice, to an extent, continues on now, doesn't it? So in other words, it is still left up to a person who may have a grey day, about whether they're called in or how the day is treated? Do you think that that's been cleaned up a little bit more nowadays?‑‑‑It's been cleaned up but it's still not precise and not constant.
PN850
Right, but there is some additional certainty now about how- - -?‑‑‑Correct.
PN851
- - -grey days operate?‑‑‑Correct.
PN852
Would you say that that's the purpose of having the enterprise bargaining agreement?‑‑‑It's that's my opinion of why you have an enterprise bargaining agreement.
PN853
Right?‑‑‑Yes.
PN854
So there was a bit of give, there was a bit of take?‑‑‑For sure.
PN855
Right. So the issue about how grey days actually operate is closer to your thinking of how, as a chief operating - as to how grey days should actually work?‑‑‑Correct.
PN856
Once the agreement was put up again, after Mr Lynch made his comments and various changes were made to the draft agreement, the draft agreement was again put up to a vote in about Christmas time to the pilots, was it not?‑‑‑Correct, yes.
PN857
And the clause 8.1 and 8.2 were in the agreement then, wasn't it, in the same form as you have now?‑‑‑That is correct, yes.
PN858
That vote went down in a screaming heap, did it not?‑‑‑Yes.
PN859
Well there was probably can you remember the numbers?
*** PETER WILLIAM DOCKING RXN MR DASAN
PN860
MR MOLNAR: There are a lot of leading questions here that I don't really object to.
PN861
MR DASAN: This is a redirect, sir, I'm actually doing what my job is, clear on redirect.
PN862
THE COMMISSIONER: But you can't lead on a controversial matter.
PN863
MR DASAN: I'm not leading, I'm asking a question again choose to answer the question.
PN864
MR MOLNAR: I'd just like to put it on the record.
PN865
THE COMMISSIONER: All right.
PN866
MR MOLNAR: I am aware that these are leading questions.
PN867
MR DASAN: So it went down so did the vote actually get up?‑‑‑No, it was I can't remember the numbers but it was convincingly defeated.
PN868
Right. What happened after that, Mr Docking?‑‑‑There was considerably more negotiation, including conciliation through the Fair Work Commission. A range of activities went on to try and produce an agreement that was acceptable to the pilot group.
PN869
Discussions between the pilots and the AFAP with the Royal Flying Doctors?
PN870
MR MOLNAR: I'm not sure whether these were these things pertain to matters that I raised in my cross-examination. It's a bit unclear to me.
PN871
THE COMMISSIONER: Mr Dasan?
*** PETER WILLIAM DOCKING RXN MR DASAN
PN872
MR DASAN: Sir, he did raise those issues in relation to the fact that as to what happened in relation to agreements after Mr Lynch had put his the agreement out and it had gone to a vote and I'm entitled to ask what the process was from that point on. Because somehow or other, the inference being made by friend, in relation to the cross-examination earlier on, was that somehow something dirty actually happened in the process. And on that basis, of having opened that door, I'm entitled to redirect on this matter, sir.
PN873
MR MOLNAR: I think that's a rather wide interpretation of the matters that I raised.
PN874
THE COMMISSIONER: Mr Dasan, look I think what's happened here is unfortunately Mr Molnar has raised an objection at a point you probably should be leading in the sense that at the point the objection was taken, you were putting propositions were actually not controversial at all. So I suspect what's then happened is, not surprisingly, you've gone back to first principles and asked open questions, which is going to delay the whole process.
PN875
MR DASAN: So I'm going to ask three more questions and then I'm finished.
PN876
THE COMMISSIONER: All right, well let's get on with it. As you know, we're on a pretty tight timeframe.
PN877
MR DASAN: Yes. Yes, I do.
PN878
Mr Docking, post that discussion, was another draft agreement sent out for the pilots to this is after the vote's gone down?‑‑‑Yes.
PN879
Were there any discussions in that period, after the agreement went down in December, to any changes to clause 8?‑‑‑There was no discussion.
PN880
Was another agreement, at this stage, put up for a vote?‑‑‑It was.
PN881
With the same changes to clause with the same clause 8?‑‑‑Correct, it was.
PN882
Did that get up?‑‑‑Yes. That's what we have today.
PN883
Thank you, Mr Docking. That's all, sir.
THE COMMISSIONER: Mr Docking, you're completed, you can stand down. You're released from your oath. Thank you?‑‑‑Thanks.
<THE WITNESS WITHDREW [2.32 PM]
*** PETER WILLIAM DOCKING RXN MR DASAN
PN885
THE COMMISSIONER: Thank you.
MR DASAN: Sir, if I may call Mr Anthony Vaughan.
<ANTHONY ROSS VAUGHAN, SWORN [2.33 PM]
EXAMINATION-IN-CHIEF BY MR DASAN [2.33 PM]
PN887
MR DASAN: Mr Vaughan, before you is a statement that you've provided in relation to this matter going for four pages. Is that your statement?‑‑‑Yes, it is.
PN888
And it has a series of attachments, five attachments, TB5, one to five. That's a complete statement that you've provided with attachments?‑‑‑Yes.
PN889
May I move that we have it into evidence, Commissioner?
PN890
THE COMMISSIONER: Yes, no objection to the admission?
PN891
MR MOLNAR: No.
THE COMMISSIONER: Yes, Mr Vaughan's statement and attachments be admitted and marked as Exhibit R4.
EXHIBIT #R4 WITNESS STATEMENT O ANTHONY ROSS VAUGHAN WITH ATTACHMENTS
PN893
MR DASAN: Mr Vaughan, can you just provide us a brief background as to your background, prior to becoming the Chief Operating Officer of the Royal Flying Doctors, Central Operations?‑‑‑Yes, prior to joining the RFDS, I was 30 years employed by SA Ambulance Service and MedSTAR medical retrieval in various roles as a retrieval paramedic and in the last 20 years, as a general manager in country operations and then invited to be the inaugural general manager of MedSTAR Emergency Medical Retrieval Service from about 2009.
PN894
Was the agreement, the 2014 agreement as we are now referring to, were you there at the beginning of the negotiations in relation to that enterprise bargaining agreement?‑‑‑No, I wasn't. I only joined the RFDS on 1 April 2014 and at that time there were numerous enterprise bargaining processes going on in the RFDS and I inherited all of them, including this one.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN895
Congratulations?‑‑‑Yes, thank you.
PN896
Have you been involved in rostering exercises previously in the other jobs that you have held?‑‑‑Yes, I have and I have extensive experience in rostering and negotiation of industrial instruments, agreements, and that's a key part of the reform that the RFDS is seeking to achieve over the next four or five years and hence, part of the requirement for the Chief Operating Officer to have a strong operational rostering, industrial background.
PN897
Can I refer you to the enterprise bargaining agreement which is TB1 of the statement you've got before you?‑‑‑Yes.
PN898
I just wanted to take you to clause 8 of that agreement?‑‑‑Hm-mm.
PN899
At the time you joined the negotiations, was there a draft agreement already in place with a grey day clause there?‑‑‑Obviously I'm being introduced to the negotiation process as I sought the advice and counsel of a lot of my staff and they needed to explain to me what a lot of these things meant, so particularly grey days that I found quite grey. I was quite happy to learn that, what I thought at the time, both parties had negotiated in faith a reasonable definition of something that I found quite ambiguous.
PN900
Right. As a person that came up against the term "grey day", can you, for the sake of the Commission, actually provide us with your views on what a grey day actually is?‑‑‑Well, a grey day is something that was called a grey day, I guess, by the RFDS. But in theory, what it is, is it's an instrument for us to comply with the regulations set by CASA to ensure that pilots are free from work prior to their rostered days off, if they have worked an afternoon shift or a nightshift that completes after 2200. Something the doctors and nurses are quite jealous of, but pilots get it.
PN901
So it's effectively do you see it as a rostering tool? What is it, in your mind as someone who is setting a roster?‑‑‑Well how it's been explained to me and how we apply it is that it is a first of all, it is a paid day. It forms part of the roster as a paid day. It's not a day off, it's not grey in its interpretation in the fact that it is a paid work day and forms part of the five days a pilot might be rostered.
PN902
So on that basis, if you looked at may I take you to clause 8? Putting aside how the words came to be, can you tell me, if you read the first paragraph where it says, if I may read it may I read it to you:
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN903
A 'grey day' is a rest period that is not considered a rostered day off duty.
PN904
You would accept that statement?‑‑‑Correct.
PN905
The next sentence reads:
PN906
It is a rest period to ensure Line Pilots and Senior Base Pilots are free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.
PN907
Do you have any issues with that?‑‑‑No, not at all.
PN908
So that second line, what do you think it means? What do you say it means?‑‑‑Well, if a pilot is rostered on a shift or finishes late into a shift that goes into 2200, which happens from time to time because of an emergency flight, they are entitled to a grey day into their days off.
PN909
So nothing remarkable about that?‑‑‑No.
PN910
Is it your view, Mr Vaughan, that effectively here is that if you work past - that is the second line here. If you work past 2200 hours, that's when a grey day actually applies? The following day if you are coming up to another day - - -?‑‑‑You qualify for that day. So unless something happens out of the ordinary, most grey days are taken because they're rostered - the pilot would have completed their shift normally and then they would be entitled to a grey day. No issue.
PN911
Let's have a look at 8.2, if I may read that.
PN912
Grey Days will be provided on days following any completed rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.
PN913
Can you tell us how do you see that 8.2 actually operating?‑‑‑Look, I see this clause no different than other clauses that apply. If you qualify for something, you are awarded it. If you work overtime, you get paid overtime. If you work over 2200 hours, you get a Grey Day. If you do not, you do not. It's - you still get a pay - you are still available to us for that fifth day because it is a paid working day. Whether we choose to use you or not is entirely up to us.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN914
As you would be aware in relation to this proceedings, might I take you now to the first sentence in 8.2? If I may read it, it says:
PN915
Grey Days will be provided on days following any completed rostered on-call period or actual duty -
PN916
What is your view - for the sake of the Commission, can you tell us what it means when it says "completed rostered on-call period"? What does that mean to you?‑‑‑Well, what that means is our way of complying with the regulations set by CASA that we must - for fatigue management of a pilot, if they finish a shift after 2200 we are obligated to give them a paid day off prior to any rostered days off. So if they have completed it, we give it, no question. If they don't, then they are not entitled to it.
PN917
Can I just take you to the next few words down there, "or actual duty that finishes later than 2200 hours"?‑‑‑Right. So that goes to my point before that there will be circumstances where because of an emergency flight that a pilot will finish after 2200 because it's an unplanned event or in a situation like today where we have got a pilot that's booked off and we will find another pilot and they will come in and do an afternoon shift or a night shift and we will have to follow that up with a rostered - you know, with a Grey Day if they are going into their days off. So we will have to adjust their roster to give them that.
PN918
So you don't - is there anything in your mind that tells us that this is not how it has operated in the past?‑‑‑Well, the - as Mr Docking said earlier, I don't believe we have actually changed our position except that if we choose to allow the pilot to stay at home on a Grey Day whether it is earned or not, that is our - - -
PN919
MR MOLNAR: Sorry, I don't think the witness was working for the RFDS at this relevant time. How can he really comment on what happened prior to - in relation to prior practices. It's hearsay, if anything.
PN920
THE WITNESS: Well, I have been fully briefed, Mr Molnar.
PN921
MR MOLNAR: That's my point.
PN922
MR DASAN: Commissioner, Mr Vaughan happens to be the Chief Operating Officer and I am sure that as part of the rostering program he would have been fully briefed about how things would actually have operated. If I may - - -
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN923
MR MOLNAR: That's my point. It's hearsay.
PN924
THE COMMISSIONER: Well, the rules of evidence don't apply in the jurisdiction as both counsel would know. The question about these matters is always weight, so let's assume for the purpose of this ruling that what Mr Dasan has said is right and that is that the witness has been briefed on what happened. That doesn't mean that the witness can't give evidence about what he understands the past practice to be, but his evidence can't stand for what the past practice was. So it's relevant in terms of he qualifies in the answers that he might make as to whether or not there is now a change, but ultimately it isn't evidence about what the past practice was. Only someone that directly saw that could give evidence that is capable of being relied on. So all of this is admissible but it is a question of what weight attaches. So, Mr Dasan, with that qualification - - -
PN925
MR DASAN: Thank you, Commissioner.
PN926
THE WITNESS: If I could just add that this agreement was, I guess, approved on the 1st of May 2015 and I was here on the 1st of April 2014, so I was here for 12 months prior. So I've got 12 months absolute knowledge of what prior practice was.
PN927
MR DASAN: Thank you, Mr Vaughan. Mr Vaughan, in relation to the Grey Day argument as such, you were aware of the first iteration that went on or about the 13th of - the first - sorry, I will rephrase that. You were aware of the first two paragraphs, 8.1 and 8.2, in a slightly amended form with, if I may go to 8.2, the word "completed". You were aware that there was a clause during the negotiations - in the early stages of the negotiations that had a similar 8.2 without the word "completed" in it?‑‑‑Yes, that is correct.
PN928
That's correct?‑‑‑That's correct
PN929
You're aware of that?‑‑‑Yes.
PN930
So I'm just going to build on that a little bit?‑‑‑Yep.
PN931
You were aware that in relation to the email of 13 November, which is TV3 in your statement, that went out providing changes to the Grey Day clause in the draft agreement?‑‑‑Yes.
PN932
Are you aware, Mr Vaughan, that a track changed document was sent out with those changes?‑‑‑Yes.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN933
Can I now take you to the letter sent from AFAP, which is TV4, raising some issues with what was in that clause? Can you see that? Can you see TV4?‑‑‑Yes.
PN934
Look at page 2 under the dot point saying "Grey Days" where they raise an objection to what was in the draft agreement?‑‑‑Sure, yep.
PN935
Can I now take you to TV5, if I may where at clause 4 - at point 4, sorry, on page 2 of that letter it says:
PN936
The RFDS will honour the previous drafting of the Grey Days clause and confirm that it will run over two paragraphs under 8.2.
PN937
?‑‑‑Yes.
PN938
And in brackets:
PN939
(Clause 3.4, 8.3 and 8.4 in the draft agreement which was sent to the committee on the 13th of November 2014).
PN940
Does it say anything in that - as far as your understanding, does it say anything about a change being made to clause 8.2?‑‑‑No. Look, I still believe that we honoured the intent of the Grey Day clause and that - that was always our - I didn't think the parties were in dispute. As has been previously said, there was no angst raised to me by anybody. Certainly Mr Molnar and AFAP, we had many discussions about lots of other things, but not this particular clause.
PN941
So if I may ask you, post the letter of 3 December, which is TV5, another draft agreement was - (indistinct) agreement was again sent out to all the parties?‑‑‑That's correct.
PN942
There were changes in that agreement?‑‑‑Multiple changes, yep.
PN943
Can I take you to the email sent by Mr Lynch - - -
PN944
THE COMMISSIONER: You will need to provide that, I think. A copy would have gone back to Mr Docking, I think, so it would have been part of all that pile somewhere.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN945
MR DASAN: Have you seen that email previously?‑‑‑Yes, I have. Yes.
PN946
Can I take you to the second last paragraph down there where it says:
PN947
It was very clear to me now (indistinct) that some matters were made in the translation from the in principle agreement to the draft EA sent out for discussions and consultations about the pilot (indistinct) sincerely apology for that position."
PN948
If you have any knowledge of this, was Mr Lynch actually referring to anything in particular that you are aware of?
PN949
MR MOLNAR: For the same objection that was raised - - -
PN950
MR DASAN: No, I accept that. I withdraw. I accept that and withdraw. To your knowledge, after some of these errors were picked up was another draft document sent out to the pilots?‑‑‑This - this email and the next draft - I was on annual leave around the end of November, early December as was Mr Molnar, I think, because we were talking to each other while we were on annual leave, but there were a number of changes, to my surprise, made to the enterprise agreement mainly around the non-payment of penalties and things like that that wasn't in our original discussion around the table and I was on record in those meetings and, in fact, in the Commission to say that the RFDS would honour back pay on penalties and it's certainly been raised to me that in the previous agreement that that was a big issue and caused angst amongst the pilot group because it wasn't and hence we - as soon as I became aware of that I contacted the Chief Executive Officer whilst on leave and briefed him on the conversation that I had had with Mr Molnar and the AFAP and that resulted in this email going out to the pilots that from the executive of the RFDS we didn't believe that the draft that had gone out for consideration was our recollection of events either, so - - -
PN951
Did Mr Lynch have any discussions with you about the contents of this email prior to it going out?‑‑‑Yes, he did. Yes.
PN952
Did Mr Lynch raise with you any issues with regards to any feedback he may have received with regards to Grey Days or the way the - - -?‑‑‑Nothing about Grey Days. Certainly about post-shift overtime and the payment of penalties were the two - and the wage offer. They're the three major - they were the three major sticking points.
PN953
All the money clauses, as you may put it?‑‑‑Yes.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN954
And these discussions - you had discussions with Mr Molnar about those matters?‑‑‑I did.
PN955
Did Mr Molnar raise with you any issues in relation to the construction of clause 8.1 or 8.2 - - -?‑‑‑No, he did not.
PN956
- - - as a sticking point with the pilots?‑‑‑He did not.
PN957
Did any other pilots from the bargaining group actually raise any matter with you concerning the construction of 8.1 and 8.2?‑‑‑They did not.
PN958
So following on from that, the new - the redrafted agreement after that email, was that the agreement - the final draft that was actually put up for a vote on or about Christmas? Just before Christmas?‑‑‑I can't recall now. I know that we withdrew one of them from going out because it was so far from what we thought we had agreed to, to getting bashed into some sort of shape before it went out and then it was defeated anyway, but - - -
PN959
So effectively there was a draft agreement taking out the offending bits after your discussions with Mr Molnar?‑‑‑Mm'm.
PN960
In the normal course of events, would you have distributed it to the bargaining team again?‑‑‑Yes, absolutely.
PN961
So do I take it that that was the agreement that was put up for a vote?‑‑‑That's correct.
PN962
How did that vote go?‑‑‑It was defeated. I think three in favour and the rest no, so it was very unanimously defeated.
PN963
So it was a damning indictment - - -?‑‑‑Absolutely.
PN964
- - - of the agreement - - -?‑‑‑Absolutely.
PN965
- - - as it stood at that point?‑‑‑Absolutely.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN966
Subsequent to that were there further discussions that you were aware of between the parties? Between the AFAP, the pilots and the RFDS in relation to changes to the enterprise bargaining agreement? The draft agreement?‑‑‑Absolutely. Some in this Commission and some around the table outside the Commission.
PN967
Were there some other changes made to the agreement after those negotiations?‑‑‑Absolutely.
PN968
Those changes were also contained in another draft agreement?‑‑‑Yes.
PN969
Was that distributed to all of the parties involved in the negotiations?‑‑‑Yes.
PN970
Was that an agreement that was put up to the vote?‑‑‑It was.
PN971
Did that agreement that was put up, as far as you're aware, contain the same 8.1 and 8.2 clauses that are in the current enterprise bargaining agreement?‑‑‑They were.
PN972
Were they the same clauses 8.1 and 8.2 that were there in the defeated agreement - - -?‑‑‑Correct.
PN973
- - - back in late December 2014?‑‑‑That's correct.
PN974
Did at any stage any of the pilots involved in the bargaining team or the AFAP ever have a discussion with you over the November through to the second vote taken on the enterprise agreement? Did anyone ever put up a proposal to you as the Chief Operating Officer as to how Grey Days were to be dealt with?‑‑‑No.
PN975
In the subsequent discussions in the new set of enterprise bargaining negotiations after the first agreement had gone down was there any discussion in relation to any change to the wording of 8.1 and 8.2 raised with you?‑‑‑No. We had other issues to deal with.
PN976
Either in casual conversation with Mr Molnar or any other bargaining agents in relation to those changes?‑‑‑No, no discussion at all.
PN977
In your mind, your view, did you think that the pilots accepted the changes in 8.1 and 8.2 going into the vote?‑‑‑I believe it provided some clarity for the first time around the application of Grey Days. I was quite comfortable.
*** ANTHONY ROSS VAUGHAN XN MR DASAN
PN978
Do you believe that at any stage - in relation to clauses 8.1 and 8.2 did you actually believe that the RFDS was trying to pull the wool over the eyes of the pilot group or the AFAP?‑‑‑No.
PN979
Did you think that at any stage the drafting of 8.1 and 8.2 was controversial in any shape or form?‑‑‑No, I don't believe so.
Does your belief about it not being controversial - I'll withdraw that. That's all, sir.
CROSS-EXAMINATION BY MR MOLNAR [3.00 PM]
PN981
MR MOLNAR: Do you have a copy of Mr Remilton's witness statement?‑‑‑No, I don't.
PN982
If I can just take you to page 117 of Philip's witness statement, there you have got the two clauses that were proposed, the AFAP clause and the RFDS clause and the RFDS clause doesn't include the word "completed" does it?‑‑‑Not in this version, no.
PN983
That was the clause that was agreed to by the parties, wasn't it?‑‑‑Initially, yes.
PN984
Initially, yes. If you included the clause as it was drafted there, the clause would have a different effect, wouldn't it?‑‑‑My understanding was that initially there were two additional clauses.
PN985
No, no, no, but these are from the minutes on 26 March 2014. That was prior to any additional clauses being put in?‑‑‑The answer to your question is I don't believe it changes the intent at all by the word "completed" at all.
PN986
So you disagree with Mr Docking when - - -?‑‑‑Absolutely, yep. The intent does not change.
PN987
On page 214 when we have got the word "completed" placed back in there, were you involved at all in the drafting of the clause as it appears there?‑‑‑So 214 doesn't have - - -
PN988
Sorry, doesn't it. Sorry, the EBA following the same - - -?‑‑‑222?
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN989
222, thank you. So the clause as it appears there, were you involved in the drafting of that clause?‑‑‑I was certainly aware of it, yes.
PN990
You had discussions with Peter Docking about it?‑‑‑Sure. Yep.
PN991
He was of the view, as he's given evidence of, that the word "completed" is crucial to be included and you're saying it's not useful at all. In fact, it doesn't need to be there?‑‑‑What I am - no, what I am saying is that the word "completed" doesn't change the intent. The word "completed" was put in there to try and take some ambiguity out of it given that we had agreed to take the two additional clauses away which would have provided - - -
PN992
No, no, no?‑‑‑I'm answering your question. Just let me finish.
PN993
No, no, but you're - you have just said the word "completed" was put in there when 8.3 and 8.4 were removed. Well, that's not true because in this EBA you have got the word "completed" and 8.3 and 8.4?‑‑‑Well, that - that was my understanding that "completed" needed to be in there particularly with 8.3 and 8.4 removed because - - -
PN994
But it was in there before they were removed?‑‑‑You asked me a question and I have answered it.
PN995
Well, why is the word "completed" in there as well as 8.3 and 8.4 given that you say that it's necessary in the absence of 8.3 and 8.4?‑‑‑I'm saying it - - -
PN996
How do you explain that?‑‑‑I'm saying it doesn't change the intent and I have answered your question.
PN997
So it's not necessary to be in there?‑‑‑I have answered that question.
PN998
Just for my benefit?‑‑‑Yes.
PN999
It's not necessary to be in there. And just to be clear, you disagree with what Mr Docking said about that?‑‑‑I'm saying the intent does not change - - -
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1000
No, no, you disagree with Mr Docking saying that the word "completed" is crucial for 8.2 to operate?‑‑‑I believe it's not crucial. The intent - if that word wasn't there, the intent does not change.
PN1001
If I could take you to Peter Docking's witness statement - - -?‑‑‑Which I don't have.
PN1002
Can I take you to PD7 which is the same document, but just with the changes tracked in the EBA?‑‑‑Yep.
PN1003
Mr Dasan has made a great deal about the fact that this was a tracked document. If you go to clause 8 - - -?‑‑‑Yes.
PN1004
- - - it's true that the insertion of the Grey Days clause is all in yellow and underlined in red, but it doesn't show the word "completed" as being added, does it?‑‑‑In this version - it would have been the early - very early version because 8.3 and 8.4 are still in there.
PN1005
Yes, this is the first time the word "completed" was put into the agreement?‑‑‑M'mm.
PN1006
I am asking you - you agree that the word "completed" isn't distinguished from the rest of the clause in terms of tracking?‑‑‑Well, the whole thing is.
PN1007
The whole thing is, yes. So you agree with me?‑‑‑Yes.
PN1008
Apart from the introduction in this document of the word "completed" the RFDS didn't alert the AFAP in any other way to its inclusion, did it, that you're aware of?‑‑‑No.
PN1009
There's no correspondence dealing with that?‑‑‑Except the whole document which was available for - - -
PN1010
Except the document?‑‑‑You to read and comment on.
PN1011
Well, the comment - where is the comment?‑‑‑No, I said for you to read and comment on.
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1012
If I could take you back to Mr Remilton's witness statement and page 251, you've seen this letter before. You would have seen it - - -?‑‑‑Yes.
PN1013
- - - as part of the negotiation committee - - -?‑‑‑Yes.
PN1014
- - - for the RFDS and you see that the AFAP has objected to your version of the Grey Days clause on the basis of its drafting amongst other - well, no, just on the basis of its drafting. The first dot point there?‑‑‑Yes. Yep, I see that.
PN1015
So you agree that we did object to the drafting of the clause that we have just looked at and that version?‑‑‑I see you had no objection to the original drafting being inserted as a stand-alone clause.
PN1016
The original drafting being inserted as a stand-alone clause?‑‑‑Yep.
PN1017
Then page 253 which is the RFDS response to us. Mr Docking has given evidence that he was the one that gave instructions for this letter to be drafted by Norman Waterhouse. Did you have any involvement in the writing of this letter?‑‑‑I would have seen it prior to coming to you.
PN1018
So you would have seen the words there at paragraph 4:
PN1019
The RFDS will honour the previous drafting of the Grey Days clause.
PN1020
?‑‑‑Yes, and I believe we have. We have honoured the intent. We haven't moved away from the intent.
PN1021
The RFDS will honour the previous drafting of the Grey Days clause and you think you have complied with that?‑‑‑We have honoured the intent.
PN1022
Well, I am asking you have you honoured the previous drafting?‑‑‑We've honoured the intent. That's my answer.
PN1023
No, it's a yes or no question. Have you honoured the previous drafting?‑‑‑Absolutely.
PN1024
How can you say that?‑‑‑The previous drafting has got the word "completed" in it. You've just shown it to me.
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1025
Let's go back to Mr Remilton's witness statement at page 117. We've just seen that. At 117 the RFDS clause - does the second paragraph of the RFDS proposed clause include the word "completed"?‑‑‑Not in this version it doesn't.
PN1026
Not in this version. Then I will take you to - you were in the room this morning, weren't you?‑‑‑I was.
PN1027
Then I will take you to page 139, paragraph 2, clause 5.10, "Inclusion of definition for Grey Day", it says "agreed". What drafting was agreed to?‑‑‑I would have to have a look which version of the drafting we are referring to in July.
PN1028
Do you think it included the word "completed"?‑‑‑I'm not going to say that without looking at it.
PN1029
Well, Peter Docking has given evidence that it didn't include the word "completed"?‑‑‑I would have to go back and look at what the wording was at that particular time.
PN1030
So you're saying that the document that forms PD7, the tracked version of the EBA with the word "completed" plus 8.3, plus 8.4 was not the first time the word "completed" had been included?‑‑‑I would - - -
PN1031
Is that what you're saying?‑‑‑I would have to think about when those additional clauses and the word "completed" were originally drafted and submitted to - - -
PN1032
So you don't accept that they were only put in for the first time on 13 November 2014?‑‑‑I would have to check. I can't recall that off the top of my head.
PN1033
But you know that Peter Docking agrees that that was the first time?‑‑‑That's what he said, yes.
PN1034
And you're saying he could be wrong?‑‑‑I'm just saying I'm not - - -
PN1035
Well, you're saying he could be wrong?‑‑‑Going to swear an oath that that's actually the case when I can't recall it without looking it up.
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1036
If Mr Docking wasn't wrong and that's the first time the word "completed" was put into the EBA do you still maintain that you honoured the original drafting?‑‑‑Correct.
PN1037
Even though there is different words?‑‑‑The intent doesn't change. A Grey Day is a paid day.
PN1038
Well, that's a matter for debate, but - - -?‑‑‑No, it's not.
PN1039
- - - in terms of drafting, yes or no? You're saying that you've honoured it?‑‑‑Absolutely.
PN1040
I put it to you that you haven't?‑‑‑I'm saying we - - -
PN1041
You have changed words?‑‑‑I've honoured - we have honoured - - -
PN1042
I put it to you that you haven't honoured the original drafting?‑‑‑We have honoured the intent of the application of Grey Days.
PN1043
It's not the same?‑‑‑Well, you've asked me a question and I've answered it.
PN1044
Well, you haven't?‑‑‑Multiple times now.
PN1045
If I could ask you to have a look at exhibit A3 which is the email from John Lynch. You told Mr Dasan before that you had discussions with John Lynch prior to him writing this email?‑‑‑I did.
PN1046
Did you participate in drafting it?‑‑‑I certainly saw it before it went to you.
PN1047
You saw it before it went. Then you would have discussed it with John Lynch?‑‑‑I did.
PN1048
The last paragraph of that email directs pilots to talk to only you and Tony - only you or John Lynch?‑‑‑Yep.
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1049
Why was that the case?‑‑‑As I said before, we became concerned that - whilst I was on annual leave that there were people making assumptions, I guess, if you like, on what the RFDS position was without actually knowing what the RFDS position was.
PN1050
Who were those people?‑‑‑Mainly in our HR department. So the application of whether we were going to pay penalties or not.
PN1051
No, who were these people? Robyn Hall?‑‑‑She was one, yes.
PN1052
Was Peter Docking one of those people?‑‑‑What we tried to do is to say that - - -
PN1053
No. Was Peter Docking one of those people?‑‑‑Anybody that was on the - - -
PN1054
Was Peter Docking one of them?‑‑‑He was, yes.
PN1055
So you wanted to remove those people including Peter Docking and Robyn Hall from that EBA process?‑‑‑No.
PN1056
No?‑‑‑No, not from the EBA process. The - - -
PN1057
So why did you - - -?‑‑‑The position of the CEO - - -
PN1058
Why did you exclude them from being asked questions?‑‑‑If you let me answer one question first, the CEO decided that only the executive would provide an answer to any queries the pilots had. There are only two executives in the RFDS and that is myself and John Lynch and - - -
PN1059
On the basis of - - -?‑‑‑Seniority - - -
PN1060
MR DASAN: Sir, excuse me. If I may, Your Honour, I must object. Can we just allow Mr Vaughan to answer the question, the primary question, before being faced with the next question?
PN1061
THE COMMISSIONER: That's fair.
*** ANTHONY ROSS VAUGHAN XXN MR MOLNAR
PN1062
THE WITNESS: So, look, the reason that we did that because it was - as you know, Andrew, because you rang me personally, is that there were mixed messages being given. So what we wanted to make sure is that the RFDS' organisational position was being given on certain matters and only John and I were confident that we would hold that line and for that reason, it came down to the two of us only until we got things back on track.
MR MOLNAR: No further questions.
RE-EXAMINATION BY MR DASAN [3.19 PM]
PN1064
Can I take you back to the draft of 13 November? The email with the changes on 13 November which is in PD7?‑‑‑I don't think I've got it.
PN1065
Tony, if you look at TB3 - - -?‑‑‑PD7 or TB?
PN1066
No, let's look at TB3 (indistinct)?‑‑‑Okay.
PN1067
During the times that you were involved in the negotiations as such there were lots of changes to the enterprise bargaining agreement - the drafts, wasn't there?‑‑‑Lots.
PN1068
So things would get raised all the time, wouldn't they, as the changes had been made?‑‑‑That's correct.
PN1069
If you look at TB3, this was one set of (indistinct) of changes, was it not - - -?‑‑‑Yes.
PN1070
- - - to be put. It is clear if you look at the agreement attached to TB3 and you look at clause 8 that there were changes to clause 8, wasn't there?‑‑‑Yes, they're highlighted and underlined there.
PN1071
Highlighted and underlined, correct?‑‑‑Yes.
PN1072
So in the subsequent agreement where - after the AFAP had raised the objections to the changes to clause 8 - you have already provided evidence that 8.3 and 8.4 would be removed from the agreement and another (indistinct) of the agreement was sent back to all of the parties, were they not?‑‑‑That's right.
PN1073
That word "completed" in 8.2 was there in the (indistinct) there and the (indistinct) of the various drafts all the way to the vote of acceptance, was it not?‑‑‑That's correct.
*** ANTHONY ROSS VAUGHAN RXN MR DASAN
PN1074
Do you think it's your job to do the AFAP's job in relation to - about reading the agreement and coming up with any objections they may have?‑‑‑No.
PN1075
Do you think that the issue about Grey Days was sufficiently important for somebody who had an issue with it to raise them with you or with the bargaining committee?‑‑‑I think it would be fair to say that everybody thought the Grey Days issue was done and dusted and there was a lot more important issues to worry about.
PN1076
Would you say that 8.1 and 8.2 are clear and unambiguous about how it is to be applied? How Grey Days are to be applied?‑‑‑They are to me.
PN1077
Much has been made about the differences about operative clauses of what the word "complete" in 8.2 does or what effect it actually has and there is a difference of opinion (indistinct) my friend between your views and Peter's views. Mr Docking's views. Can you tell us with a degree of certainty, given you are the Chief Operating Officer of the RFDS, as to what 8.2 actually means to you and how it - what it means to you in the first instance?‑‑‑Well, again, to meet the application of the CASA regulation of providing a pilot a paid day off prior to their rostered days off, if they run over 2200 they are entitled to a paid Grey Day.
PN1078
So you would accept that if you didn't work past 2200 hours, then you would never be entitled to a Grey Day anyway, would you?‑‑‑No. That would be one of their normal paid work days and, you know, the RFDS may or may not require a pilot to come in on that day.
PN1079
Let us go back to the example I have used previously. You do a night on a Thursday, you work past 2200 hours, 10 o'clock at night, you get a Grey Day the next day?‑‑‑That's correct.
PN1080
And then you have your RDO on the Saturday?‑‑‑Yes.
PN1081
So Thursday, Friday, Saturday type of scenario, right?‑‑‑Sure.
PN1082
That's only as an example. Your view is that if a pilot did a dayshift and didn't overrun the roster on the Thursday - what time would that pilot finish? If they did the dayshift, what time would they finish?‑‑‑Depending which shift, but way before 2200.
*** ANTHONY ROSS VAUGHAN RXN MR DASAN
PN1083
Way before 2200. Okay, they finish that. Would they get a Grey Day on the Thursday?‑‑‑No. Friday, no.
PN1084
So as far as that 8.1 and 8.2 goes, it does provide clarity as to that and how a Grey Day actually sprouts and how it gets awarded, does it not?‑‑‑Absolutely in my mind it does.
PN1085
So for the purposes of the enterprise bargaining agreement, this is how you say the RFDS says a Grey Day works?‑‑‑That's right. Regardless of whether they have worked past 2200 or not, if they are rostered for a Grey Day, they have either earned it or it's a work day. It's part of their five days that they're rostered and we may or may not require them to come in. If they haven't qualified for it, it's entirely up to the Chief Pilot and General Manager of Aviation that if a shift is uncovered and these people are able to do it, they should be the first point of call.
PN1086
So the word "completed" there just provides a sense of clarity, of purpose in relation to how a Grey Day actually works and is granted?‑‑‑That's correct, and there might be numerous times - in fact, there isn't too many times at all that a pilot may be required to come in on a Grey - on a rostered Grey Day where they haven't qualified for it but we know that they're sitting there available to come in. It's not another free day off that they can go fishing or make themselves not available.
PN1087
But ultimately what you are putting to us - what you are putting to the Commission is that it is the RFDS that makes the decision whether a person, even if they have not qualified for the Grey Day, gets called in or not?‑‑‑Well, first of all we have to understand whether they are still sick. So they have had a personal leave day on - - -
PN1088
Can I stop you there, Mr Vaughan? Let's just say that the person isn't ill anymore?‑‑‑Okay. Well, then - then they are - because we operate an on-call system, we assume that they are well, they're home and they are able to be called because they are still on call and they are being paid.
PN1089
So what I'm saying here is that that discretion sits with the organisation, does it not?‑‑‑Absolutely.
PN1090
And like most things in life, if you didn't have to call them in, everyone will be happy with that, I suspect?‑‑‑That's right.
*** ANTHONY ROSS VAUGHAN RXN MR DASAN
PN1091
If you were to take the word "completed" out of there, you would say as the Chief Operating Officer that you would actually implement the same regime in relation to Grey Days, would you not?‑‑‑In my mind it doesn't change the intent that by regulation under CASA we have to provide this paid free day to transition people into their rostered days off. If they don't earn it, they are still getting paid for that day and it's up to us to decide whether we want to use them or get them to come into base to do something. It's entirely up to us.
PN1092
So really what you and Mr Docking are saying are entirely the same thing, but you are both starting from different ends of the stick, aren't you?‑‑‑Well, no, it doesn't change the intent.
PN1093
It doesn't change the intent. Thank you. No further questions, sir.
PN1094
THE COMMISSIONER: Mr Vaughan you are concluded?‑‑‑Thank you.
You can stand down and you are released from your oath. Thank you.
<THE WITNESS WITHDREW [3.29 PM]
PN1096
MR MOLNAR: Commissioner, given that you have to be away by 4 o'clock and I think that I am going to be quite lengthy with my closing submissions and I don't know about Mr Dasan, perhaps it would be better to provide you with written closing submissions.
PN1097
THE COMMISSIONER: How do you feel about that, Mr Dasan?
PN1098
MR MOLNAR: Or we can come back at a later date.
PN1099
THE COMMISSIONER: The second option is going to be very problematic. I am on a Full Bench that is sitting for the next three weeks every day, so it will be well over - it will be five or six weeks away and that's not the sort of delay - - -
PN1100
MR MOLNAR: I just don't think that I will be finished within the required time.
*** ANTHONY ROSS VAUGHAN RXN MR DASAN
PN1101
MR DASAN: Sir, if I could have the indulgence of the Commission and ask for a much longer period to respond. I am slated not to be around next week, all of next week, and I have got trial date commitments leading up to most of this week. So if we can't complete today I am happy to come back, but at the same time, if we are going to make submissions, it will take me some time to actually put them together if it doesn't happen this week or today. So I am happy if, with the concurrence of my friend, we could have a bit more time in relation to setting out our time scales in relation to getting the response back for at least three or four weeks from now. I would appreciate that.
PN1102
THE COMMISSIONER: All right. I mean I have assumed that this sort of delay, to come back in person, wouldn't be appropriate. Now, if that assumption is not right, then - - -
PN1103
MR MOLNAR: I'm sorry, what was that, Commissioner?
PN1104
THE COMMISSIONER: I had assumed that it wouldn't be appropriate to delay - coming back in person for the length of time that would be necessary, but if that assumption is not - - -
PN1105
MR MOLNAR: It doesn't bother us one way or the other.
PN1106
THE COMMISSIONER: All right.
PN1107
MR DASAN: In that case, I am happy to come and make oral submissions, sir.
PN1108
THE COMMISSIONER: I must say oral submissions in a case like this are actually preferable, in my view, because what's happened - and I am sure both counsel would be very alert to this - is that your respective positions have - there are various nuances that have emerged in the course of the hearing and I suspect the same will happen. That's just the nature of a matter like this and I suspect the same will happen when you provide your closing submissions. Also there are a series of issues, like I did at the start, that I would want to raise with you. So if there is no pressing need to get on and get a decision - - -
PN1109
MR MOLNAR: No pressing need.
PN1110
MR DASAN: We are fine if that's how you want to proceed, Commissioner.
PN1111
THE COMMISSIONER: All right. We'll see what sort of date we might have available then. Gentlemen, the difficulty I have got is at the moment the Full Bench has locked up my diary, but there is at least one - there are three potential dates which might become available and I won't know that until possibly tomorrow when the Full Bench actually starts it's long journey. They are either 30 September or 1 and 2 October and I raise those because, Mr Dasan, you alerted me to the fact that you've got a trial. I'm not sure whether you're talking that far out, but if that - if I'm not available, and that may happen, then the earliest date I have available will be 18 or 19 November.
PN1112
MR MOLNAR: If we could get a copy of the transcript, November would be fine.
PN1113
MR DASAN: Eighteen or 19 November, did you say, sir?
PN1114
THE COMMISSIONER: Yes.
PN1115
MR DASAN: Yes, I agree with my friend subject to the transcript being available, sir. If it's available almost immediately, I am actually - even the earlier dates are fine with me, but - - -
PN1116
MR MOLNAR: Any of those dates are fine with me if one becomes available.
PN1117
THE COMMISSIONER: All right. I think in the circumstances the first thing I would indicate is given there will be a delay and the parties are working around the Commission's convenience and availability, in that context I will order the transcript which is not generally done these days, but I think in those circumstances it is appropriate that it be done.
PN1118
Secondly, I will adjourn the matter to a date to be fixed and that date will be one of the five dates that I have provided. If it becomes convenient and I can give you enough notice we will pick up the earlier dates. Otherwise, at the very latest, it will be either 18 or 19 November.
PN1119
MR MOLNAR: Thank you, Commissioner.
PN1120
THE COMMISSIONER: So we will adjourn on that basis.
ADJOURNED INDEFINITELY [3.37 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS....................... PN37
PHILIP HENRY REMILTON, SWORN............................................................. PN39
EXAMINATION-IN-CHIEF BY MR MOLNAR............................................... PN39
EXHIBIT #A2 WITNESS STATEMENT OF PHILIP HENRY REMILTON PN54
CROSS-EXAMINATION BY MR DASAN......................................................... PN65
RE-EXAMINATION BY MR MOLNAR.......................................................... PN284
THE WITNESS WITHDREW............................................................................ PN298
EXHIBIT #R1 PORT AUGUSTA ROSTER..................................................... PN302
EXHIBIT #R2 RESPONDENT'S OUTLINE OF SUBMISSIONS................. PN370
PETER WILLIAM DOCKING, SWORN......................................................... PN371
EXAMINATION-IN-CHIEF BY MR DASAN.................................................. PN371
EXHIBIT #R3 STATEMENT AND ATTACHMENT OF PETER WILLIAM DOCKING PN386
THE WITNESS WITHDREW............................................................................ PN537
PETER WILLIAM DOCKING, RECALLED ON FORMER OATH........... PN537
CROSS-EXAMINATION BY MR MOLNAR.................................................. PN537
EXHIBIT #A3 EMAIL FROM MY LYNCH SENT 3 DECEMBER 2014.... PN697
THE WITNESS WITHDREW............................................................................ PN702
PETER WILLIAM DOCKING, RECALLED ON FORMER OATH........... PN702
CROSS-EXAMINATION BY MR MOLNAR.................................................. PN702
RE-EXAMINATION BY MR DASAN.............................................................. PN797
THE WITNESS WITHDREW............................................................................ PN884
ANTHONY ROSS VAUGHAN, SWORN.......................................................... PN886
EXAMINATION-IN-CHIEF BY MR DASAN.................................................. PN886
EXHIBIT #R4 WITNESS STATEMENT O ANTHONY ROSS VAUGHAN WITH ATTACHMENTS................................................................................................. PN892
CROSS-EXAMINATION BY MR MOLNAR.................................................. PN980
RE-EXAMINATION BY MR DASAN............................................................ PN1063
THE WITNESS WITHDREW.......................................................................... PN1095
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