C2017/1379, Transcript of Proceedings [2017] FWCTrans 241 (13 June 2017)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

SENIOR DEPUTY PRESIDENT HAMBERGER

s.739 - Application to deal with a dispute

Transport Workers' Union of Australia

 and

Airport Fuel Services Pty Ltd T/A AFS

(C2017/1379)

Airport Fuel Services Enterprise Agreement 2014

Sydney

10.01 AM, MONDAY, 22 MAY 2017

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances, please.

PN2

MR G WEBB: Yes, your Honour, if it pleases the Commission my name is Webb, initial G, appearing on behalf of the Transport Workers' Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR D MURRAY: If it pleases Murray, initial D, from Australian Industry Group, I appear for the respondents, and I have with me Ms McManus, initial D, from the company for the respondent, and Ms Mahrs, initial M, from Caltex, the operator of the respondent.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Webb, you have got four witnesses?

PN6

MR WEBB: Yes, your Honour, we have four witnesses.

PN7

THE SENIOR DEPUTY PRESIDENT: Can we go straight into hearing evidence or did you want to make - - -

PN8

MR WEBB: There is just one preliminary matter, or two that I just want to deal with. First of all one of our witnesses is not available, so we won't be tendering his statement.

PN9

THE SENIOR DEPUTY PRESIDENT: That's Mr Maddox, is that right?

PN10

MR WEBB: That is Mr Darren Maddox. So he is not coming. The other thing I just want to address which I will address now because I think it will assist in the hearing today, but in the respondent's submissions, if you have got a copy of them there, just at paragraph 30 onwards there's submissions made about the declarations that we are seeking, and in particular our second declaration about - essentially a backdating declaration that these extra duties will - if it's determined that they are outside the scope of the classification that it will apply to previous instances where they perform these extra duties.

PN11

I just want to clarify that I think in our submissions we have restricted these to United Airlines. However just to clarify we are not saying that these extra duties only apply to United, but also they're similar duties they have been asked to perform since the enterprise agreement has been made, so those being for Delta Airlines, and I think there has also been a reference in the respondent's evidence in relation to some similar work being performed for Hawaiian Airlines. It is up to the respondent if they wish to disagree, but I think it's agreed that it's similar work that is being performed or being asked to being performed for both Delta Airways and - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Maybe you can lead some evidence on that.

PN13

MR WEBB: Yes, I will, that's fine, but just to assist both your Honour and the respondent. Other than that I am ready to call our first witness. So call Michael Korfias.

<MICHAEL KORFIAS, SWORN                                                      [10.04 AM]

EXAMINATION-IN-CHIEF BY MR WEBB                                   [10.03 AM]

PN14

MR WEBB: Just for the record could you please state your full name and address?‑‑‑Yes, Michael Korfias, (address supplied).

PN15

You're a grade 4 refueller employed by FS?‑‑‑That's correct.

PN16

Do you have a copy of your statement there with you?‑‑‑Yes, I have.

PN17

Have you read through it?‑‑‑Yes, I have.

PN18

And you have signed it at the end?‑‑‑Yes, I have.

PN19

Do you agree that its contents are true and correct to the best of your knowledge?‑‑‑Yes.

PN20

I tender the witness's statement.

PN21

THE SENIOR DEPUTY PRESIDENT: I have just noticed the copy of Mr Korfias' statement is unsigned.

PN22

MR WEBB: I have a signed copy here I can tender, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: No objections I assume?

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN24

MR MURRAY: No, thank you.

EXHIBIT #TWU1 STATEMENT OF MICHAEL KORFIAS

PN25

MR WEBB: Michael, just some initial questions just to clarify some things that may have been omitted from your statement, or just to clarify some things that are in there. Just give me one second. So in your statement you go through a number of times you have met with Mr Dave Jackman regarding the current dispute for the extra duties performed for Delta and United. Was there any other meetings that weren't in your statement that may have occurred that you think is relevant?‑‑‑Yes, there was one. After the stuff up with Delta and we were told that we wouldn't be doing anything after that, he asked me into the office and he said I've written up a five point, or five questions, five to seven questions to send to marketing, to say to marketing this is what we perform. If there's anything above that you need to tell us, so we can come back and tell our workforce, and then we can consult if there's any changes above and beyond what we actually do. Now I don't know whether that was sent. I believe it was sent to marketing, but I don't know what happened after that, so I'm not privy to that.

PN26

That's fine. Just moving on from that. How many prior enterprise agreement negotiations have you been involved in with AFS?‑‑‑At least three of them.

PN27

Can you elaborate on any particular major changes or amendments that may have been made during those three times or any issues that were raised?‑‑‑No. The only thing, I think it was the last three previous agreements, was there was word changes, like to include females, because we never had female refuellers, but it was always a possibility, and it was basically only just word changes from what I can recollect.

PN28

Administrative changes essentially?‑‑‑Yes.

PN29

Was there anything in relation to the classifications or anything discussed about that?‑‑‑No, no. It was basically what we've always been doing, it was just refuelling.

PN30

So you said that you have been a refueller for almost 20 years at AFS?‑‑‑That's correct.

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN31

Can you perhaps give us your view during that time of any significant changes in relation to your duties that have occurred during that time?‑‑‑Yes. I was the first refueller to actually refuel Hawaiian. They had their own engineer, their own rep was there for the first week or so.

PN32

When did this occur?‑‑‑This would have occurred - I'm not really sure - it was before 2015.

PN33

Before 2015?‑‑‑Yes, yes, it was before all that. We never did anything other than refuel. The same with Air New Zealand, it was a shared contract with Shell. All we did was basically fuel it and then on from that we got asked to do - take the arrival fuel and give them the SG. Then we were asked to do headsets which we've never done in 20 years that I've been there. They said it was a simple job and we had to produce the docket to the pilots.

PN34

But prior to all these changes which you are saying since about 2015 can you give us your view of any sort of changes that may have occurred in the work that you do prior to these being introduced?‑‑‑No, no. It was basically we just rocked up, fuel the aircraft, give them our computerised docket to the engineer. The engineer did the headset, he did everything - - -

PN35

When you say did the headset can you just explain what you mean?‑‑‑Sorry. The headset is you go to the pilot and what we do now is we're given a preliminary load, say - it's 9 ton that we normally put on a small aircraft. Then we wait about 20 minutes or so. We've got to go over and put the headset on and we contact the pilot and we say, "Have you got a final?" The pilot says, "Yes, I've got a final", and he gives you the final. You repeat it. You got back, you put the final on. Then from that stage you go back to the headset, you ask him whether he's happy with his fuel. He says, "Yes, I am." I say, "Thank you." I take the headset off. I go back, I print out the docket, and then I go up the stairs or I go onto the aerobridge, which we're allowed to do not, but which we weren't allowed to do - you know, 18, 19 years ago. We weren't allowed anywhere in the aerobridge which is a sterile area as they call it, and then we produce the docket to the pilots. We also write down the SG, which is the - what the fuel is. I'm not too sure what the SG is, but I think it's like viscosity or the temperature of the fuel, and then by showing my copy of the SG which I've written on his docket he confirms with it and he's happy with it then I'll walk off the aerobridge.

PN36

How do you know what the SG is - - -?‑‑‑We get it every morning from JUHI. JUHI is the joint user hydrant installation. Shell use it, BP use it, we use it. Yes, so we get that one of a morning.

PN37

So it's like a daily figure that - - -?‑‑‑Well, it changes because once a tank is virtually emptied or to a certain point, then what happens is they'll call up and say we're doing the temp change, so that means all the pressures are dropped so we can't fuel. Once they put the pressure back in the lines they send us a new one, and then we issue the refuellers with a new one, or they come in and take a new one and go back out.

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN38

Just to clarify the matters in relation to the headset when did you start doing those?‑‑‑It would have been last year I think.

PN39

Last year?‑‑‑Yes, I think it was last year sometime.

PN40

Just moving on to the extra stuff you have been asked to do and why we are here today in relation to United Airlines, Delta Airlines and possibly Hawaiian Airlines, do you want to just in your own words just explain what you understand is the work that you are being asked to perform?‑‑‑Yes, well I haven't been trained up on United yet, because I'm a shift boss so it's very hard to pin me down to train me. So I've been trained up on Delta, and I've done that quite a few times. We were given virtually an hour and a half training. We do have like a template that we carry in our trucks in case you've forgotten how to do it. Hawaiian was the same, we never used to do anything with Hawaiian, all of a sudden now we're doing arrival figures and - - -

PN41

THE SENIOR DEPUTY PRESIDENT: So what exactly are you doing, if you can describe exactly what - - -?‑‑‑Sorry, my job?

PN42

In relation to this work for Delta and for Hawaiian. It was different from what you used to do?‑‑‑So rather than - - -

PN43

MR WEBB: What is the actual task that you understand that you are being asked to do?‑‑‑Well, we've been asked to do a calculation that at the end of the day we've got to get it right.

PN44

THE SENIOR DEPUTY PRESIDENT: But what calculation do you have to do?‑‑‑Well, we have to change pounds to - sorry, yes, litres to pounds, and that actually is brought out by - by Menzies who are their go-between I suppose you want to call them. They bring out the sheet and we have got to wait until - we put in the start figures, so when the plane arrives we put in the left and right wing and the centre, whatever's - you write down that - - -

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN45

So this is how much fuel is still in the aircraft?‑‑‑Yes, yes, the arrival fuel. So you calculate both - both wings, add them together, put it on the sheet. Then when you get the - when you finally get the final fuel load you put that on, then you take the arrival fuel away from the final fuel load. Then there's a calculation, and their SGs - their SG is always on the sheet, that never changes. With United - with United that could change three or four times, so - because the plane works out the SG. We don't - we don't use the SG that we're given, like what we have on our person, we don't use that at all on that aircraft, but once we do all that we work out - there's a figure that you multiply your litreage by zero point something or other, and then that gives you the litreage - sorry, the pounds. Then you take - you take your pounds away from their pounds and you've got a variance of 450 litres. If you go over 450 litres you'll delay the aircraft. If you go under that you'll delay the aircraft. You have to get it within that tolerance. If you don't then - yes, you've got problems.

PN46

So you're doing a multiplication and a subtraction?‑‑‑Yes, yes.

PN47

MR WEBB: Just to clarify, you keep referring to the SG, is that the density figure, is that - - -?‑‑‑Yes, that's correct.

PN48

Does that affect the calculation itself? Is that used, does that input into any of the calculations?‑‑‑Yes, it is. Yes, you've got to have that, because if you don't you're going to have major problems, but the difference between - the difference between Delta is they have a certain density, whereas United actually get the density off the aircraft instruments. Now, a couple of cases have been where we've had three different densities. So you have to change your paperwork three different times, which we never had to do before, it was always the engineer did that, and the engineer can fudge it a little bit, whereas we can't, we've got to do it perfect. Well, if we don't we're in trouble, which is what occurred - we had - - -

PN49

THE SENIOR DEPUTY PRESIDENT: So why would you - sorry, I mean why would you fudge it, you are given - - -?‑‑‑Well, we don't - we don't - we don't do that. We don't do that. The engineers - well, they've been doing it for longer than we have, so they - - -

PN50

Yes. Don't worry about the engineers, I just want to know what you do?‑‑‑Yes, yes. We had an audit the other day on - on that aircraft and we did what they call a systems test, which we've never done before either, and once we did that it threw the aircraft right out, so there was a 40 minute delay on that aircraft before we could actually finish the fuelling, finish our paperwork. So we inadvertently delayed the aircraft, but it wasn't our delay, it was the engineers had to go back up there and fix it all up and get it all right before we could get it right. We can't get it right unless they get it right.

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN51

So that instrumentation wasn't accurate?‑‑‑Yes, well - yes, yes. And the other thing too now what's happening with United is when the plane first comes in the engineers get the arrival fuel, but because the APU is burning the fuel by the time we get there an hour and a half later that figure now drops, and while we had the auditor there he would not allow us to do anything until that paperwork was correct. So they had to go back to Menzies, get it correctly put in, typed in because they type it in, and then bring it back to us before we could even start fuelling.

PN52

Thank you.

PN53

MR WEBB: So this extra bit of work that they're asking you to do for both Delta and United, and I think Hawaiian as well, what's your concerns about what they are doing?‑‑‑Well, it's putting a lot - I think it's putting a lot of pressure on the - on the refuellers, because when I - as a shift boss when I assign the aircraft fuelling to a certain fueller, who I've got a sheet that says who's done it and who hasn't done it, their concerns are the hour and a half is just not enough. We get an hour and a half training - - -

PN54

Sorry, an hour and a half what, training?‑‑‑An hour and a half training and it's just not enough for these guys. They're not - they're not confident, you know, like they're just not confident. So the engineers were helping us refuel the aircraft basically.

PN55

What other paperwork do you fill out for other airlines other than these three?‑‑‑We don't. We don't do - it's just Hawaiian that I know of. We don't get any paperwork form Air New Zealand. We actually write it on our final docket that's printed out from our little computer. So it's only basically those - it's Hawaiian, Delta and United.

PN56

Where you are required to fill out paperwork?‑‑‑Yes, they're the only three.

PN57

Just to clarify in relation to Hawaiian Airlines when did you say that you started doing this work for them?‑‑‑Well, not - not initially when it first came in. It wasn't probably for probably a year after they started to say to us - - -

PN58

So you said before that it was before 2015 when you first fuelled?‑‑‑Yes.

PN59

Then when did they start implementing this - - -?‑‑‑I don't know the exact date, but it would have been probably last year sometime when we started doing the - it could have been longer, I don't know, but it was - like I said we didn't - - -

PN60

Would it have been after the start of 2015? So we're in 2017?‑‑‑It could be, yes. Like I said I don't really know, unless they know, unless management know when we actually first started, when the first airline came in and - - -

***        MICHAEL KORFIAS                                                                                                                        XN MR WEBB

PN61

Was there any issue with performing this for Hawaiian with the refuellers?‑‑‑The same thing again. I think - I think people are a bit wary, they didn't want to have that responsibility, and like we're not doing the whole thing, we're only doing part of it. Now, you know, are we responsible for our little bit or responsible for the whole lot. We don't know, that's the problem.

PN62

Nothing further

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Murray.

PN64

MR MURRAY: Thank you, your Honour.

CROSS-EXAMINATION BY MR MURRAY                                  [10.19 AM]

PN65

MR MURRAY: Thank you, Mr Korfias, I just have a few questions. I will just take you through them. Just following your statement, in your statement at paragraph 9 to start with, you said in your statement:

PN66

I've always understood that the documents were required to complete as set out in dot point 10. Of course 6.4 of the enterprise agreement related only to documentation issued and provided by the respondent.

PN67

But there's nothing actually in dot point 10 of the agreement that says that, is there?‑‑‑I don't have the - the agreement beside me, so I'm not too sure.

PN68

Perhaps if I can read it to you, and if necessary, your Honour, if I might approach I can show the witness. The dot point 10 that you are talking about is the one that starts, "Completion of documentation"?‑‑‑Yes.

PN69

It reads:

PN70

Completion of documentation associated with the NITA aircraft refuelling and receipt of product and storage.

PN71

There is nothing there that actually says company documentation, is there?‑‑‑No, but it's our - our view that that's what it was all about, and that's why that EBA needs to be clarified properly.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN72

It's your personal view, but there is nothing actually in that provision that restricts that documentation. It's documentation general, isn't it?‑‑‑No, but it doesn't say documentation for another aircraft either, or for another company. So it's ambiguous.

PN73

So in fact it's the case that there is nothing arising out of that dot point 10, and that's what you are pointing to - - -?‑‑‑Yes.

PN74

- - - that says that the documents are only company issued or AFS issued documents. That's the case, isn't it?‑‑‑That's - that's our - that's the way we read it, yes.

PN75

In fact for quite some time now you have in fact been using other documentation; you have referred for example to documentation for Hawaiian?‑‑‑Yes.

PN76

You were unclear about when that started. My friend was asking you about that and whether it might have been early 2015. It might well have been early 2015, mightn't it?‑‑‑As I said I cannot say exactly what date.

PN77

I put it to you that in fact you have been doing the paperwork using the Hawaiian documentation for a period since at least early 2015?‑‑‑You're telling me. I'm not sure.

PN78

And you have been using documentation for other airlines, you have referred to Delta?‑‑‑Yes.

PN79

And you have also been using documentation supplied to you by Air New Zealand?‑‑‑No, we don't get documentation from New Zealand.

PN80

I am putting to you that in fact you have been for a considerable period now, at least two years, been using documentation provided, and not directly by this company?‑‑‑Sorry, what was that, sorry?

PN81

For a considerable period now, at least two years, you have been using documentation provided by others than this company, other than AFS?‑‑‑We've had to, yes.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN82

So it's not a new thing, you have been using documentation for quite a considerable period?‑‑‑Yes. Can I just say to that too that the documentation you're talking about has started with two figures and now it's gone to more complicated figures, and more work and more - I think most of the guys are worried that if they stuff up they could lose their jobs.

PN83

But the documentation we are talking about in the case of Delta for example is a single page form, isn't it?‑‑‑That's correct, yes.

PN84

In the case of United it's a single page form?‑‑‑I wouldn't - it is, but I haven't been trained on it.

PN85

In the case of Hawaiian it's a single page form?‑‑‑Yes, with two figures only.

PN86

You have been called upon to do calculations you say?‑‑‑Not with Hawaiian, because it's not part of our duties. With Delta it is and with United it is, but not with Hawaiian.

PN87

You have actually been called upon in the case of Air New Zealand to do a calculation; not a conversion from metric to US (indistinct) but a calculation of the fuel uplift for Air New Zealand?‑‑‑That's correct, but not - we don't get any documentation from Air New Zealand. We actually write on that sheet.

PN88

So you do a calculation for them though?‑‑‑Yes.

PN89

And I put it to you that in the case of Hawaiian you have also been doing a calculation of fuel uplift?‑‑‑No, we actually get the fuel uplift by - Qantas send us a fax sheet which I hand it to either the refueller or myself if I'm doing it. It gives us - - -

PN90

In the case of Delta you're called upon to do a fuel uplift calculation?‑‑‑Yes, that's correct.

PN91

And as far as you are aware in the case of United you're called upon to do a fuel uplift calculation?‑‑‑I'd imagine so. Like I said I haven't done the - I haven't done the training.

PN92

But none of that is new. In the case of Air New Zealand for example that's certainly not new, that's at least two years?‑‑‑No, but it's new to - it's new to me after 19 years of working with AFS it is.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN93

That fuel uplift calculation that's a simple subtraction calculation, isn't it?‑‑‑For Air New Zealand?

PN94

In general. You have the starting fuel?‑‑‑No, we put the starting - yes, sorry, yes.

PN95

You have the starting fuel?‑‑‑Yes.

PN96

And you have the final fuel required?‑‑‑Yes, after consultation with the skipper.

PN97

Then you subtract one from the other?‑‑‑Yes, yes.

PN98

And that's really all that is?‑‑‑That's all it is.

PN99

The only additional recall if you like in the case of these US-based airlines is a conversion of the units between metric and US units?‑‑‑Yes, that's correct, yes.

PN100

So you are simply converting from litres to gallons?‑‑‑Yes, yes.

PN101

And then you use the SG, the specific gravity, to get a figure for weight?‑‑‑With Delta they've got their own SG, but with United that changes, it can change at least three times before you actually get the final calculation.

PN102

So again this is a simple division, isn't it?‑‑‑I suppose so, yes.

PN103

You are provided with calculators to do that?‑‑‑Yes, we're provided with a calculator.

PN104

So the only additional wrinkle in as compared to what you have been doing for at least the couple of years is that calculation, the conversion calculation?‑‑‑After 19 years, yes.

PN105

So all that we are talking about really is that?‑‑‑Well, it's a new - yes, I suppose, but we look at it as something new. It's something that's not in our EBA.

PN106

I put it to you that that calculation is a very simple one?‑‑‑I don't know about simple. Each person's different, and whether they're confident, that's the other thing. If they're not confident they get the engineer to help them out.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN107

So you put a number into your calculator and you divide it by the SG figure that you're given and you press equals; that's what we are talking about?‑‑‑Yes, yes. If the SG's right, yes.

PN108

The SG is not something you're responsible for determining or measuring, is it?‑‑‑Well, you know, we've got 400 passengers sitting on an aircraft, it is our responsibility as far as I'm concerned.

PN109

You don't actually measure with a hydrometer the density of the fuel though, do you?‑‑‑No, because no airline does it.

PN110

You're given a number to work with?‑‑‑No airline uses a hydrometer any more, but, yes, we are given a figure.

PN111

So you're actually given a number?‑‑‑Yes.

PN112

To put into the pocket calculator before you press equals?‑‑‑That's correct.

PN113

So going back to your statement then you talk about a meeting, a toolbox talk in February 2016?‑‑‑Yes.

PN114

Where Dave Jackman spoke to you and the other operators about the Delta Airlines and the service that was to be delivered to Delta Airlines?‑‑‑Yes.

PN115

He told you about the work that was to be done, but he never said to you anything about the wage rise?‑‑‑About what, sorry?

PN116

He never said anything to you about a wage rise, did he?‑‑‑No.

PN117

And specifically he didn't say that there would be a feather in your cap for a wage rise, he simply said there would be a feather in your cap for future negotiations?‑‑‑For the next EBA, yes, that is correct.

PN118

He never said there would be a pay rise. Where you said at paragraph 15 of your statement with regards to a wage rise that's not actually what he said at all?‑‑‑You say paragraph 15?

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN119

Yes, paragraph 15 of your statement. Do you have your statement there? It starts, "Dave told us"?‑‑‑No, I don't recollect saying that. I recollect him saying feather in our cap and I recollect him saying that we could take that to the next EBA, but, no, not a wage rise. We can't ask for - - -

PN120

So that's actually incorrect in that statement?‑‑‑Well, it probably is. I can't remember saying that, but the thing is we can't ask for a wage rise. Our EBA's a legal binding document, so I wouldn't have said that. We can't ask for anything and the company can't ask for anything extra. That's the way I read our EBA.

PN121

So we have talked about the extra duties and the nature of the extra duties being simply this conversion calculation. So you had training from - or in respect of the Delta Airlines requirements, didn't you; you have spoken about that this morning?‑‑‑Yes, about a half and a half training, yes.

PN122

About an hour and a half training, which largely was a refresher because this was all familiar territory, wasn't it?‑‑‑I've only been trained once. We don't have refresher courses, they don't give us refresher courses, unless you ask for it if you're not really competent in doing it, yes.

PN123

So you were provided with training to carry out the whole of the task and in the course of that training you were taken through this simple calculation of conversions?‑‑‑Yes, and I also use what's in the truck. I use a template in the truck because not everyone does Delta every day.

PN124

So you have got a template as a sort of - - -?‑‑‑A fall back.

PN125

- - - a memory jogger?‑‑‑Yes.

PN126

You have got a calculator?‑‑‑Yes.

PN127

And we are talking about filling in a simple one page form, that's what it comes down to?‑‑‑You might say it's simple but, yes, okay. Yes. There's nothing simple in this world.

PN128

The training also included a practical component too, didn't it, an on aircraft sign off?‑‑‑Sorry, what was that again?

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN129

The training that you did included an on aircraft assessment as well?‑‑‑Yes. Usually we have three assessments but with Delta - sorry, with United we only had one.

PN130

Yes, but you've had on aircraft assessments by the trainer to make sure that you're competent?‑‑‑That's correct.

PN131

I put it to you that, in fact, the employees have demonstrated that they're competent?‑‑‑I can't speak for everyone else, I can speak for myself, yes.

PN132

No one's failed?‑‑‑Well, I don't know, I really don't know.

PN133

Because it's such a simple task?‑‑‑You keep saying "simple", yes. If you think it's simple, yes.

PN134

THE SENIOR DEPUTY PRESIDENT: Mr Korfias, just to be clear, no one's been disciplined, as far as you know, for getting it wrong, in the time that you've been asked to do it? It's not like someone's made a mistake and they've got into trouble for it?‑‑‑Not that I know of. Not that I know of.

PN135

MR MURRAY: No one's been disciplined, no one's been warned?‑‑‑Like I say, I don't know.

PN136

No one's been subject to any disciplinary procedures at all?‑‑‑I don't know, to be honest, I really don't.

PN137

I put it to you that no one's had any difficulty doing it either?‑‑‑Speaking for myself, I still look at the template because, like I say, not everyone gets Delta every day, you might get it once a month, you could get it once every three months, it varies.

PN138

So this simple task is only done every now and again?‑‑‑Yes, that's correct.

PN139

So it's hardly a significant addition to your job then?‑‑‑It's more responsibility, I reckon, for our job.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN140

The odd occasion of once or twice a month, according to your evidence, where you do a simple calculation that can't take more than a minute or so, and that's what we're arguing about?‑‑‑I don't know about being simple, you keep saying it's simple.

PN141

THE SENIOR DEPUTY PRESIDENT: How long does it take to do, the actual calculation?‑‑‑The actual calculation, it could take you five or 10 minutes, it just varies because you've got to wait till your fuelling is finished. Sometimes we don't even get the paperwork, we just get told, "Put this much on", and the paperwork comes to you later. Then you've got to sit down and work it out and you've got to get it right. From there it goes to the pilot, I believe, and he's supposed to check that, I've got no idea.

PN142

Can I just say, with this point 15 I think where it says here, "Regards to a wage rise", I think that was a bit taken out of context. I think we said that we should get a pay rise for it but we knew we couldn't get a pay rise for it because our EBA says we can't ask for any extra. Like the company couldn't ask for any extra. Can I also say that Air New Zealand was a shared contract to start with, so Shell did part of it and we did part of it and nobody did paperwork for it at all. All of a sudden, after our EBA is signed, probably in 2014 I think it was, in 2015 I think management came to us and said, "We've now got the whole contract, it's good for us", which is it, because a shared contract you can always stuff up. And they said, "Right, as from now you have to do this sort of paperwork, you have to use the headset." All the guys, the older refuellers said no, because it's something extra the company's asking for. Same with Delta. Same with United.

PN143

When Dave came to us and said, "Look, marketing stuffed up, can you help us out?" I said, "Look, Dave, I've worked with you for six years before you became a manager." I said, "It's going to be very hard to get it over the line." So I spoke to all the older guys, they said no, but we reconsidered because we thought Dave's a good bloke, and he was and I knew him, and we wanted to get him out of the shit, I suppose, sorry for the term.

PN144

So we went ahead and did it for him and then we said, "That's it, we're not doing any more." Then all of a sudden I go to do United and I get United saying, "When are you doing the paperwork?" I said, "What are you talking about?" He said, "You're doing the paperwork as from a certain date." Well, they hadn't trained any of us up so when the date fell due I went and saw Suzanne, our new boss, and I said, "What's this I'm hearing rumours." I said, "We heard rumours about Delta, we heard rumours about United, what's the go?" She said to me, "We're actually having a meeting with them tomorrow or today", I can't remember what day it was, and that that was going to happen. So I said, "Well, you haven't trained anyone up." I said, "This is new to us." I said, "I thought you couldn't ask for any extra." I said, "We can't ask for a pay rise, you're asking us to do all this extra work now." So she said, "That's the way things are, the way things are going." So I went back and said to the guys, "We're actually starting it from this day and none of you is trained up for it."

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN145

So they scrambled to get some blokes trained up, but even when we did get trained up United was still doing it because the guys would go and say, "Look, I'm sorry, but I'm not confident, can you do it for us?" and they'd do it for us, right up until the audit was when we had to show that we had to do it because the auditor was there and we had the trainer there, the second in charge there and that's where it's all boiled from, that we've been asked to do all this extra work and we got nothing for it, no allowances.

PN146

THE SENIOR DEPUTY PRESIDENT: Okay, thanks.

PN147

MR MURRAY: You keep saying "all this extra work" but the extra work that you're talking about is the conversation calculation. All of the other things were things that you'd already been doing?‑‑‑Because we didn't have a choice. There was no choices, we were told that we had to do it.

PN148

All of the other things such as, for example, the fuel uplift calculations, you'd already been doing that?‑‑‑Yes.

PN149

You'd already been doing that in the case of Air New Zealand and Hawaiian. In the case of Delta, all that we're talking about is the conversation calculation?‑‑‑That's correct, yes.

PN150

You're familiar with the fuel service record form used for Delta?‑‑‑Yes, I am.

PN151

So that has on it a set of boxes for you to fill in the total actual pounds on board?‑‑‑That's correct, yes.

PN152

And the total pounds on arrival?‑‑‑Well, that's the same thing, yes.

PN153

Then you do a subtraction to get the pounds added?‑‑‑Once the fuelling is finished, yes.

PN154

And that's all of your fuel uplift calculation? That's the fuel uplift calculation to that point?‑‑‑We have to use their calculations to get that final figure.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN155

But that part of it you'd already been doing, in the case of Air New Zealand and Hawaiian, long before Delta?‑‑‑Not when we first took the contract over, no. We didn't do anything and then we just, all of a sudden out of the blue, said, "This is what you're doing", so we agreed to do that for them. Then same with Delta, we weren't told we were doing any paperwork and then all of a sudden, bang, we got hit with that because marketing stuffed up. So all these things have just snowballed.

PN156

You've already agreed that you were doing fuel uplift calculations previous to Delta, so what we are left with is the next step, which is divided by actual fuel density, "Use 6.70 if not available." So you've already got the figure of how many pounds added, all we're really talking about is dividing by 6.70 to get gallons added then dividing gallons added by 3.78 to get litres added, that's all we're talking about?‑‑‑I suppose so, yes.

PN157

That's all the extra work that we're talking about, isn't it?‑‑‑Well, not only that, we're doing headsets, we never did before, we're doing calculations for every other airline.

PN158

Headsets aren't a part of this application though?‑‑‑Sorry?

PN159

Headsets aren't any part of this application?‑‑‑It's not part of our duties either.

PN160

This application - - -?‑‑‑You have a look at our EBA, it doesn't state, "You have to use a headset." That's always been an engineers job.

PN161

This application is about the performance of this calculation?‑‑‑And that's been an engineer's job for years to come too and we're only just doing it.

PN162

So you then talk about a November 2016 meeting, but prior to that there were other meetings. You had a meeting with Dave Jackman in about June, didn't you, June 2016?‑‑‑Yes. I'm not too sure, but yes. What paragraph's that?

PN163

Well, it's not in your statement?‑‑‑Sorry, right. Okay.

PN164

But there was a meeting prior to November, a meeting in about June 2016 and you discussed the issue with Dave Jackman at that time?‑‑‑What was that about? Are you talking about Delta or are you talking about United?

PN165

The issue of the work being done for Delta?‑‑‑Yes.

PN166

And you discussed with Dave Jackman the question of whether that was within the enterprise agreement?‑‑‑And I said it wasn't.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN167

And Dave Jackman then followed up with a letter to you, dated 21 June, where he very clearly said that the acceptance of this task by operators is consistent with the current enterprise agreement?‑‑‑There's a bit of dispute about that, yes.

PN168

But he made it very clear, in that letter, what his view was, didn't he?‑‑‑Well, he's the manager, so.

PN169

MR WEBB: Your Honour, I just want to object to this line of questioning. I was going to address this in my submissions but I think I'll address it now. The evidence which my friend is trying to adduce is all evidence that - it's all matters that occurred post the agreement being made, which the relevant authorities have stated that it's not admissible for the purpose of interpreting the agreement, and it may be relevant to the context of the agreement but I think it's not relevant for these proceedings.

PN170

THE SENIOR DEPUTY PRESIDENT: The only trouble is quite a lot of your evidence is - - -

PN171

MR WEBB: I agree.

PN172

THE SENIOR DEPUTY PRESIDENT: You are right on the general proposition it's just that a lot of the evidence is - - -

PN173

MR WEBB: It is, but I just don't think it's helpful or it's going to assist in coming to your decision. I just don't think it's helpful and it just a waste of time. I accept that it is - - -

PN174

THE SENIOR DEPUTY PRESIDENT: I don't disagree with you. Can I just make the observation that at the end of the day a lot of the evidence, arguably, isn't totally relevant, the issue really is does the work that the employees are being asked to perform fall within the classification of grade 2 or grade 1? A lot of the stuff that happened subsequent to the 2014 Agreement can't really be relevant. Now, a lot of your evidence is to that effect and I agree that a lot of the respondent's it. I need to understand, obviously, what it is that people are being asked to do but things that were said by people, subsequent to the agreement being made about what the agreement means is unlikely to be relevant to how to interpret the agreement.

PN175

MR WEBB: Except, perhaps, when looking at the contents in which the agreement has been made.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN176

THE SENIOR DEPUTY PRESIDENT: Yes, but that's context usually that's prior to the agreement being made, which is, I think, the point you were making.

PN177

MR WEBB: I'll go to that in my submissions but my objection still stands that I think that the line of question is trying to adduce irrelevant evidence and I don't think we need to keep going with it. If it pleases the tribunal - - -

PN178

THE SENIOR DEPUTY PRESIDENT: Given that both parties have put on this kind of evidence I'm going to allow Mr Murray to continue if he wants to. You've already heard some comments made by me about how useful it's going to be to me in making my decision.

PN179

MR MURRAY: Yes, and I'm very glad, your Honour, that you've focused attention on that because the reason I put this forward is the proposal was put forward by my friend in submissions, and also in evidence, that somehow Mr Jackman had conceded this, that it was outside the scope of the operator classification and the intention of putting this to the witness was to deal with that proposition. Clearly it wasn't conceded by him that it was outside the classification. But if we're focusing ourselves not on what people thought but, rather, on what the nature of the duties was, then I don't need to press that further. Now, having now pointed to - - -

PN180

THE SENIOR DEPUTY PRESIDENT: Well, I can understand that, in terms of industrially, people are very - it had a significant impact, what was said after the agreement was made. I must say, in terms of construing the agreement, it's not something that's going to be of any great help to me. I'm going to have to construe the agreement, based on what the agreement actually says and maybe, impossibly, surrounding circumstances leading up to the making of the agreement. But anything that occurred, in terms of what's been said after the agreement, it's a bit hard to see what weight I can give it.

PN181

MR WEBB: Can I just add, if it assists, just in terms of the evidence that we've provided and the post agreement conduct, I think that some of it is relevant, in looking at the context of when the agreement was made, because what it is that we're trying to show is that not much has changed in these employees' duties.

PN182

THE SENIOR DEPUTY PRESIDENT: I got that.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN183

MR WEBB: Obviously that's understood by Mr Jackman in the evidence that we've provided. So I accept that it's post agreement conduct and it may not be relevant for the purpose of interpretation of the meaning, but perhaps it assists with looking at the context in which the agreement was made.

PN184

THE SENIOR DEPUTY PRESIDENT: Let me put it this way, I'm not going to be overly interventionist on this, you can put this evidence on, but you've heard where I'm coming from so how much you want to press it is really up to you. Mr Murray?

PN185

MR MURRAY: Thank you, your Honour. So that cuts through rather a lot of what I was going to put to this witness, which will save us all some time. The final issue that I want to address with you is towards the end of your statement. You say, in paragraph 28 of your statement:

PN186

I believe the respondent is asking us to take on additional extra duties for its management gain.

PN187

Then at 29 that you believe that it's outside your duties. In simple terms, 28 really gives the game away, doesn't it, that's what this is all about?‑‑‑Sorry, what was that again?

PN188

Well, this application is not about whether you are performing duties outside the scope of the agreement, the motivation for this is a grab for a share of what you perceived as financial gain, that's what this is all about, isn't it?‑‑‑Well, I think for the added responsibility, which is new to us, like I say after 20 years nothing has actually changed but everything is changing, all of sudden. Same with IATA, we don't have IATA in our EBA and the other thing, too, is the JIG(?), which we don't have any say in that either, that's an international thing and that's all done by management and we think that all this extra work and extra responsibility that's why we asked for the letter that we could produce at the next EBA as a bargaining tool. So that was the reason why what we're saying is that we're actually doing the work now, even though our EBA was signed, sealed and delivered, all of a sudden everything is starting to be thrown at us and we're doing it all and we might go to the next EBA - now, we've already had a change of management, that letter he's given us mightn't stick, we mightn't be able to use that letter, I don't know. But that's what we're saying is - - -

PN189

But all of that is a matter for negotiation at the next EBA after this one, that's the case, isn't it?‑‑‑And that's a fair way away too.

PN190

You also said, in passing just now, that you don't have IATA as part of your agreement, you're referring to the IATA guidance material on standard inter-plane fuelling procedures?‑‑‑That's correct.

***        MICHAEL KORFIAS                                                                                                                 XXN MR MURRAY

PN191

That's not part of your enterprise agreement and, in particular, the levels in the IATA guidance material have no relationship to the operator levels in your agreement, do they?‑‑‑No, they don't.

PN192

So the operator duties and level 3 IATA payment, there's actually no relationship between level 3 and the payment of the operators at all?‑‑‑I don't know, I don't have the rules, I've never seen the rules for IATA.

PN193

So when, in paragraph 29 of your statement, you say that you believe you should be entitled to a level 3 IATA payment, that's a mistake isn't it, because there's no relationship between the IATA levels and your levels, under your agreement?‑‑‑No, there isn't, but we were asked to do that level 3 outside of our agreement.

PN194

But under the IATA guidelines the conversion from kilos to pounds or litres to gallons, that's part of level 2 refuelling, not level 3 refuelling?‑‑‑I'm not sure. Like I say, I'm not privy to the levels.

PN195

So when you claim that it's IATA level 3, that's guesswork on your part?‑‑‑That's what we were told, that it was level 3.

PN196

Thank you, I have nothing further of this witness.

PN197

THE SENIOR DEPUTY PRESIDENT: Mr Webb?

RE-EXAMINATION BY MR WEBB                                                [10.48 AM]

PN198

MR WEBB: Just quickly, there's a couple of questions, nothing too much. You were involved in the most recent negotiations of the enterprise agreement?‑‑‑That's correct, yes.

PN199

Can you just tell me the timeframe of that?‑‑‑That was 2014. I think we ended up wrapping it up in September of 2014.

PN200

Yes, I think it was registered around May 2015?‑‑‑Yes, we don't know why that took so long. For some unknown reason, it was probably close to Christmas and then it went over and - - -

***        MICHAEL KORFIAS                                                                                                                      RXN MR WEBB

PN201

THE SENIOR DEPUTY PRESIDENT: It was probably the Commission. It was probably our fault.

PN202

THE WITNESS: We're shot now because once we found that out we've now got to wait another six months before we can negotiate.

PN203

MR WEBB: That's fine. You've given evidence that you've been asked to do extra work for Hawaiian, Delta and United, were any of these required during the time of those negotiations?‑‑‑No, it was not.

PN204

It was following?‑‑‑It was after it had been signed, sealed and delivered and then all of a sudden we got hit with, "You're doing this for Air New Zealand, you're doing this for - we have to do this", because if we don't the contract for Delta is so big that if we lose it we were told we could lose jobs, which I thought was a bit strange because we're pumping - we're probably the biggest refuelling company on the airport. We outdo Shell and we outdo BP, and BP we actually do their work for them.

PN205

So just prior to this enterprise agreement being made, or voted on at least, it would have been voted on around September, you're saying?‑‑‑Yes, I think so.

PN206

MR MURRAY: Objection. My friend is very blatantly leading the witness. I've let quite a lot go back because it wasn't particularly contentious but this is really without order. He's giving the witness the answers that he wants now.

PN207

MR WEBB: The witness has been a bit unclear about dates and time periods, I'm just trying to clarify, because he has been unclear, both when questioned by my friend and myself, as to when the duties commenced and when the enterprise agreement was made, so I'm just trying to clarify that. But I'll try and rephrase the questioning. What changes in your duties were required prior to the making of the agreement, in 2014?‑‑‑None. There was none.

PN208

Between the two agreements?‑‑‑There was none at all. Like I said, there was only word changes, there wasn't - - -

PN209

I mean in your actual work that you're doing?‑‑‑Right. No, nothing. We had no changes whatsoever. We just said, "Go out, refuel the aircraft and give the docket to the engineer." We didn't use headsets, we didn't do anything that we're doing now.

***        MICHAEL KORFIAS                                                                                                                      RXN MR WEBB

PN210

Nothing further.

PN211

THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr Korfias, you're excused and you can go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.51 AM]

PN212

MR WEBB: I'd like to call our next witness, your Honour. I'll just grab him from outside. The applicant calls Mr Shane Braz.

PN213

THE ASSOCIATE: Please state your full name and address?

PN214

MR BRAZ: Shane Michael Braz, (address supplied).

<SHANE MICHAEL BRAZ, AFFIRMED                                        [10.53 AM]

EXAMINATION-IN-CHIEF BY MR WEBB                                   [10.53 AM]

PN215

MR WEBB: Good morning, Shane. You don't have a copy of your statement there, do you, if I could get the associate to hand it up. Just for the record could you just state your full name and address, please?‑‑‑Shane Braz, (address supplied).

PN216

You've got a copy of your statement there in front of you?‑‑‑Yes, I do.

PN217

You're read it, you've signed it, can you confirm that that's your signature at the end of the statement?‑‑‑That is my signature.

PN218

Can you confirm and affirm that the contents of your statement are true and correct, to the best of your knowledge?‑‑‑They are true, yes.

PN219

Thank you. At this stage we seek to tender the witness' statement, your Honour.

PN220

THE SENIOR DEPUTY PRESIDENT: Mr Braz's statement is TWU2.

EXHIBIT #TWU2 WITNESS STATEMENT OF SHANE BRAZ

PN221

MR WEBB: How long have you been employed at AFS for, Shane?‑‑‑Now? I've been there since 2014, so coming up to nearly four years.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN222

You know what the dispute is about, about this new work to be performed?‑‑‑Yes.

PN223

Can you, just in your own words, explain what it is that you're being asked to do?‑‑‑Yes, well for me the dispute is clearly about we're evolving in the workplace and for years and years we've been doing our refuelling a very standard and normal way and now the airlines have got more modern aircraft and they're, I suppose, changing the details of how they want the fuelling done.

PN224

What about just the actual work itself? So for Delta, Hawaiian and United, what's the actual work that you're being asked to do?‑‑‑With those airlines, say with Delta we've been asked to do conversions and write down paperwork and facilitate the fuel log for the captain and the engineers, that we previously have never done but now we're doing for Delta. United, we just started last week and this dispute is about United, and Hawaiian, we've done a bit of paperwork and that, but we don't do any conversions, all we do is write down the start there and a meter reading and then we pass it on to the Qantas engineers that complete the fuel log. So basically Delta is what we've been doing mostly, lately, and in question to that it was brought up that we were going to start doing that particular work and we sort of - well, we weren't going to do it at the start, we protested and we said it was beyond our capabilities at the time.

PN225

So who issues this paperwork?‑‑‑Who issues the paperwork? For Delta it's given to us by the engineers and I suppose the ramp manager, you'd call it, or representative for Menzies that work for Delta. They give us the paperwork and then we follow our training and fulfil.

PN226

Have you done this work for United yet?‑‑‑United? No, I haven't done.

PN227

So with Hawaiian the paperwork's been given, who issues that?‑‑‑The paperwork for Hawaiian is faxed to our grade 4 office and then we take it out and then we - - -

PN228

Who faxes it, do you know?‑‑‑I believe it's Hawaiian, Hawaiian fax the paperwork through and then we just facilitate that paperwork and give it to the Qantas engineers after we set the panel and then they fulfil the last requirement of the paperwork and confirm that it's accurate and correct.

PN229

What other paperwork do you fill out in your role?‑‑‑When it comes to airline fuel documents, none, besides Delta and now it'll be Hawaiian, sorry, now it'll be United. I don't believe we fill out any documentation for Hawaiian, we just write down the start figure.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN230

What are your concerns about performing this work?‑‑‑Well, the concerns are, for one, I'm not trained on the plane itself, so when we open the panel and we hook up through a receptacle, which we have for most other airlines, this is a different aircraft, there's other things up there we don't know what they do or don't do, moving torque wrenches, parts, moving parts of the wing ailerons. They're a lot more exposed in this aircraft that the other aircrafts. The other aircrafts the fuelling panels are segregated, away from that stuff. This stuff is, I suppose because it's a modern aircraft it's been built different, but for me - - -

PN231

THE SENIOR DEPUTY PRESIDENT: Sorry. But you're not asked to touch any of those things, are you?‑‑‑No, you're not.

PN232

So why does it matter?‑‑‑Because sometimes the parts move and we're just not aware that they're going to move. Sometimes they do tests and you see the big torque wrenches move and when you put your hands up there to set the panel and stuff, like on the other airlines, other aircraft, there's structural parts that you can hang on to, to stretch or whatever, and then just saying that there are moving parts there, but we didn't know they'd move, they look like black bars but they actually do spin and turn, so we just weren't aware of that. But with the responsibility of actually taking on that work, prior to doing this paperwork that they want us to do now, we would turn up and we'd look after our own and facilitate our own truck trips and our own responsibilities, hook up to the aircraft and the engineer would come down and he would do the full fuelling. He would set it up, he would open the panel, he'd go and do anything up there and then he would complete the fuel log book. So we never had any responsibility to do that, didn't do it, and now we're doing our normal refuelling job and then taking on that responsibility of doing that paperwork now, that they used to do. The added pressure of doing that is greatly, compared to what we used to do, because we're very comfortable with what we've always done - - -

PN233

Sorry, can I just take you back a step. You said you had to complete fuel log book, in as much detail as you can tell me, what does that actually entail?‑‑‑Well, the paperwork is set out with the conversions and calculations, from what I've seen. Because I haven't done the United training I've only seen it.

PN234

Do you do the work for Delta?‑‑‑Yes, Delta.

PN235

Do you do the fuel log book with Delta?‑‑‑Conversions and all that, yes.

PN236

You do the conversation and then what do you do?‑‑‑With the conversions?

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN237

Mm-hm?‑‑‑So with the required amount of fuel load we set the panel to that, on automatic, and then the plane is meant to be sophisticated enough to get their on its own, and it should. If it doesn't then we call an engineer and say, "There's an anomaly, you'll have to override it and do it manually."

PN238

So when you say, just to be clear, when you say it's automatic, you mean it will take the fuel until it's full, is that what you mean?‑‑‑Yes, until the - - -

PN239

Like when you go to fill up your car you just press the lever and it stops when it's full, is that what you mean, effectively?‑‑‑Effectively, yes. But with the paperwork that will give you a breakdown of each tank, where the tank should get to, so you monitor that. But because of the SGs changing and the plane's temperature and things change, the tanks don't always get to where they're predicted and that can create an anomaly for different tanks so then the conversions may be a little bit out.

PN240

But what do you have to do?‑‑‑So when we put the fuel on we do the conversions at the end and sometimes it's short or over, because the plane may take more or less fuel, and then once we do the conversion, by the density, with our truck meter, it will give us an amount that is safe enough, there's a 450 pound tolerance for Delta, so if it's within that parameter it's okay to then contact the engineer and the company representative and say, "The fuelling is complete, are you happy with it?" If it's out or under, then we have to get authorisation to put more on or they have to take freight or passengers off because too much fuel has gone on.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN241

But you don't have to make that decision?‑‑‑No, we don't make the decision, we just fill it out the way we've been taught and if does breach what we've been trained, then we just follow the appropriate steps and then the engineers and the other people will get involved and they'll want to know why. Then, obviously, for us, we feel that pressure because sometimes the plane is a bit anomaly and you won't put on, say, 180,000 pounds. It will get there but when it settles it may drop or it may increase. Then because the plane has accepted what it wanted, and all of a sudden it's done it's recalculation and says, "We've got more now", they'll say to you, "You should have been that coming." We say, "Sometimes we can't because we've got to do it on automatic." Even though when we do the litre predictions and we know what we're looking for, that's why there is the 450 pounds tolerance because not everything is exactly right all the time. So that adds extra pressure that we never had, the engineers looked after that and they were constantly doing it because when they did the refuelling they would just concentrate on that one particular job, but I'm also looking after the inlet pressure on my truck, the outlet pressure, the differential pressure and I'm doing my water samples and I'm observing my area as well. So I've got extra duties now to complete with and my duties for the truck I'm used to doing, which I can do fine, but it's very hard to still take both at the same time when there is a problem so I believe that it creates more pressure for me and a bit more added stress to complete that task safely all the time.

PN242

Okay, thanks.

PN243

MR WEBB: Did you do any work for Delta prior to these new duties? Did you refuel Delta - so you've been asked to fill out these forms, did the AFS service Delta?‑‑‑Prior to this, no.

PN244

So you've only ever done this with Delta, I just want to make sure?‑‑‑Yes, when the contract changed, that's right, yes.

PN245

That's fine, I won't ask that question. What's the - you said that the only documents that you've been required - the only airlines that you fill out documentation for are United, Hawaiian and Delta, what's the previous position been of the company for other airlines, with refuellers doing that type of work?‑‑‑It's just never been done.

PN246

Has there been any position from anyone or has there been any previous attempts to try and - - -?‑‑‑Yes, with the company we've got a lot of senior guys who have been there for 40 years and they talk about how airlines have approached the company before to take on these responsibilities. Obviously we weren't aware of the IATA levels and from making terms we know now that that's what's used. They asked to do level 3s and 2s before and as far as we know the company's position at the time was, "No, we don't offer that service", because of legal reasons and indemnities and all that sort of stuff. So that was what we were told at the time, but prior to Delta, nothing has ever - yes, this is the first time we've ever taken on paperwork. The biggest deal was Hawaiian, Dave Jackman and I were the first one to deal with Hawaiian, in 2015, and all we did was write down the start figure. So that was the first time we actually go the paperwork, it was faxed and it was a big deal, everyone came out to watch it because we had never, ever done that before, and everyone was curious to see how it was going to go.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN247

When did you start doing that?‑‑‑It was July 2015 was Hawaiian. That was the first one. We didn't protest that because we said, "We're only writing down the start figure and we're only going to write down our meter reading and then the Qantas engineers will come across, take the paperwork from us, fulfil the calculations and conversions, we said, "That's no problem." So we said, "Okay, we can do that", because we want to work with the company on this and the whole way we got through this dispute was the same thing with Delta, we had an agreement with the company at the time that we were going to do Delta but we're going to move forward into the future. We realised we were in the middle of an EA and that it couldn't be cracked open. So we said to Dave, "All right, this is a one off, we'll do it and in the next EA we'll discuss terms and write it in there so everyone's protected and safe and everyone was going to financially gain", because we were told the company would charge more for this service because the airlines would be saving an engineer. "You guys will take the responsibility on", so we were all on the same page. That only really changed when United turned up and then they wanted the same service. We said, "Hang on, we sort of agreed we weren't going to do this again until the EA was negotiated in another two years", and they said, "Well, United need it done." Then obviously we asked the same questions and we sort of got to where we got to.

PN248

So why was it important that it was going to be a one off?‑‑‑Well, because Delta is only once a day and we realised that this was the future and because it was insinuated to us that there was going to be financial gain for both parties so we said, "Let's do it guys. It's job security, it's more employment, we agreed on the same grounds as the company." They said, "Yes, we can do it if we work together." Dave Jackman was a previous refueller before he became a manager, he was fully aware of what we did and didn't do and he knew it was nowhere near our scope. He goes, "No, we don't do it, never have, never will." But if we've got to make changes we will do the appropriate changes, we'll be trained, we'll be competent and we can take this work on. So we don't mind doing it, we always said, "We will happily help you and we'll do it with you." But, at the time, we were told that, "We know that you don't do it, we know you can't do it, or you're not trained, and we know that if you guys do assist us in doing this in an amicable way we can all financially gain on this." We said, "Yes, let's go. One a day is enough." As long as it wasn't going to go anywhere else at the time because we were concerned that because we're only just into our EA and we had another two and a half year term to go, we were afraid that if we started doing this for Delta it would have just spread to all of the other airlines. Then, obviously, three years later it would be a harder question to ask to say, "Look, we were told that we might get some remuneration for this." Three years later they'd say, "Look, you've been doing it for three years, why are you asking money for now?" So that's why we asked the question. We had some letters from Dave Jackman on those grounds, the responses Dave gave us weren't exactly what we were looking for and that sort of where it laid and then we said, "Okay, we'll hold up our end of the bargain, we won't have any problems, we'll just do what we're told and we'll wait for the EA." Then United turned up and then the arguments and the debates and the disputes started again.

PN249

No, that's fine. Have there been any issues since this work's been required to be done for Delta or United?‑‑‑Yes, we've had issues on Delta with underloads and overloads when engineers have to get involved and obviously the plane's have gone out late, which has been a financial burden to obviously the company and the airlines and passengers.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN250

Can you be more specific about what type of issues that you're talking about?‑‑‑We had one on Hawaiian not long ago, on a 330, we had a senior personal was filling the plane, the plane took on an extra 3000 pounds, we don't know why. As far as I can tell he set the panel at the right amount but it took too much on. We know that the panel gets sticky, from time to time, and on the 330 the panel is under the belly of the plane, which is out of the area of where we stand to monitor our truck. So once they realised that we put too much fuel on, there was a massive email, a lot of people were upset about it and the refueller had to be retrained and got a verbal warning for not monitoring the panel more regularly to realise a mistake was coming.

PN251

Just hang on, just to clarify, this is in relation to the panel you're talking about, monitoring a panel?‑‑‑Yes. Well, with the 330s, because we don't do the paperwork for Hawaiian but we set the panel amount so to get things going. So they asked for 130,000 - - -

PN252

What other airlines do you set the panel amount for?‑‑‑We can do that for Qantas. We don't do it for the 380s, they don't think we're certified enough to do it for the 380s, so there's only certain airlines that allow us to do it.

PN253

Which ones do you do it for?‑‑‑We do it for the 737s, the - - -

PN254

Which airlines?‑‑‑Sorry, Qantas is the only one we open up. We don't touch Cathay. We also do Jetstar, we touch theirs, and New Zealand, we touch theirs. So they're the only airlines that we would actually flick the switches for and the other ones are all done the normal fuelling way, where we just turn up, we hook up and we wait for the engineers to open the panel up and go for it.

PN255

When did you start doing this for these airlines?‑‑‑New Zealand we've only just started I would say 2015, 2016 as well, same as Hawaiian. The only airline we ever switch-loaded for was Qantas, prior to 2014, because Qantas is part of our company and we had indemnity from them, they said, and this is how they did it. We still did no paperwork, all we did was open the panel and we would flick the panel on and turn the switch to what they wanted.

PN256

Who did that before you?‑‑‑Qantas engineers. Well, they still do it now, it's more of a shared job. If you get there, there's an engineer there, we know the guys, they'll go, "How are you going, Shane, I'll open the panel and get it going." They'll do that. But they still fulfil the last obligation with all the paperwork, they take it away and do the calculations.

***        SHANE MICHAEL BRAZ                                                                                                                 XN MR WEBB

PN257

With the paperwork that's being produced for United and Delta, who performed that previously?‑‑‑It was all done by certified engineers. They would monitor, especially with United, they were very particular about their fuelling and that was monitored for 45, 50 minutes and they would do it on the platform and they would watch it. So it was always done by them.

PN258

Nothing further, thanks.

CROSS-EXAMINATION BY MR MURRAY                                  [11.10 AM]

PN259

MR MURRAY: Thank you, Mr Braz, I've got a few questions and I might just start with those issues that my friend from the union took you through about the question he asked you, "Have there been any issues", and you said, "On Delta with underloads and overloads", and you talked about one with respect to Hawaiian, just now, with a 330?‑‑‑That's correct, yes.

PN260

That concerned the operation of panels, didn't it?‑‑‑That's correct, yes.

PN261

So that had nothing to do with the conversion calculations?‑‑‑No.

PN262

And had nothing to do with the filling out of paperwork?‑‑‑No.

PN263

It was an issue that arose out of the operation of the panels?‑‑‑That's correct.

PN264

Which is something that you've said was done for quite some years, it's not a new thing the operation of panels?‑‑‑With Hawaiian it was.

PN265

Yes, but as a general proposition, you'd been operating panels for various airlines, including Qantas, for example, Qantas well prior to 2014?‑‑‑That's correct, yes.

PN266

I put it to you, in fact, for a range of other airlines, including domestic airlines?‑‑‑That's correct, yes.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN267

So that panel operation wasn't a new thing?‑‑‑No, but what I probably should have said was because it's in imperial, gallons and pounds, that particular aircraft, with the - I suppose by setting that panel we had never done anything like that with that particular company and when it's set, like with Qantas when we set a panel we can get it going but the engineer will come over, periodically, and he will monitor it to make sure it was getting to where it got to and now that was our responsibility. So when it overshot from where it was mean to get to at the end, we can't be in two places at once. So that's what we said to them, "We can monitor the panel periodically, as we've been trained to do, but you can't be in two places at once, from the truck to the panel." So when it overshot it became a disciplinary problem for the employee and it wasn't favourable for him.

PN268

A disciplinary problem arising out of a task the employees have been doing for quite some years?‑‑‑Yes.

PN269

There's a few other things I'd just like to take you through from your statement. Do you have a copy of your statement with you?‑‑‑Yes.

PN270

Now, I realise, your Honour, that we did canvas this issue before, in relation to the cross-examination of Mr Korfias, but I'll really just touch on it again, because I have a statement here tendered, with an assertion at paragraph 9 about Mr Jackman and what he said about the nature of the work. But what I want to put to you, Mr Braz, is this, paragraph 9 of your statement, I put it to you Dave didn't actually say that it wasn't covered by the enterprise agreement at all?‑‑‑No, that's not true.

PN271

He never said that. In fact, you've referred, in your evidence this morning, in your oral evidence, two various letters. He's made it very clear that his position, all the way along, was that it was within the scope of your enterprise agreement, that's the situation, isn't it?‑‑‑No, it's not.

PN272

So what you're being asked to do, the additional task, the extra duties that you talk about, let's just be very focused on those. You already were doing panel operations?‑‑‑That's correct.

PN273

That's something that had been done for quite some years. You'd already been performing paperwork tasks of various sorts and then with Delta what changed was the conversion calculation, that's the situation isn't it?‑‑‑The paperwork and conversions, yes, that's correct.

PN274

So what we're really arguing about here is whether the conversation calculation was a new thing?‑‑‑Well, it was for the paperwork, yes.

PN275

And whether it was within the scope of the operator's role?‑‑‑That's correct.

PN276

So you're familiar with the Delta fuel service record form?‑‑‑Yes.

PN277

So the form itself lays it out for you very clearly.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN278

THE SENIOR DEPUTY PRESIDENT: Is this in the evidence?

PN279

MR MURRAY: This is in annexure SM2 of the statement of Susan McGregor, sorry, your Honour. So this is the form?‑‑‑Yes.

PN280

You're familiar with that one?‑‑‑Yes, the Delta form, yes.

PN281

So what you're required to do then, you had already, for other airlines, been filling in the starting fuel and the required fuel?‑‑‑The required fuel would be already there.

PN282

Yes, okay. So that's your fuel uplift?‑‑‑Yes.

PN283

The difference between those, that's the subtraction sum?‑‑‑Yes.

PN284

So the conversion then is you've got the fuel for Delta in pounds?‑‑‑Yes.

PN285

And you then need to divide by 6.70 to get the fuel in gallons?‑‑‑That's correct, yes.

PN286

Then you need to divide again by roughly 3.78 to get litres?‑‑‑That's correct.

PN287

And those are the two sums, those are the two conversion calculations that you're called upon to do?‑‑‑Yes, yes.

PN288

Yes. So simple arithmetic?‑‑‑Yes.

PN289

And you fill those numbers in, following the form. It tells you exactly what you do. You follow each step, divide by the actual fuel density, use 6.70, equals calculated gallons out of it – you just fill in the form?‑‑‑That's correct.

PN290

And that's not a very complicated thing to do at all, is it?‑‑‑No, it's not.

PN291

No, it's quite straightforward and simple. And it doesn't add much time?‑‑‑Well, it does, for us, yes, with what we're doing. I used to be watching and stuff so I believe it adds a little bit of time to it, yes.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN292

The actual calculation? It'd be pushing to be a minute, wouldn't it?‑‑‑Well, no, you've got check it and make sure it's right and – yes.

PN293

Okay, so maybe a minute and a half?‑‑‑Maybe a minute and a half.

PN294

Yes, and that's the nature of the duty which you performed for Delta, about maybe once or twice a week, maybe once a day, sometimes?‑‑‑Sometimes, yes.

PN295

Yes, about a minute and a half of simple arithmetic?‑‑‑Well, yes, that's why you – but it's the responsibility of actually taking that form on and monitoring the fuelling panel, which you never did before, and that was always done by a certified engineer, so prior to that I didn't have to even worry about it, even that minute and a half, but with the pressures that may – it wasn't my responsibility.

PN296

Yes. But following you completing this form, you're not the one that actually clears the aircraft to push back, are you?‑‑‑No.

PN297

No, because as you've said, this thing goes to an engineer who checks it?‑‑‑That's right.

PN298

And then the aircraft captain, who checks it?‑‑‑That's right, yes.

PN299

And only if they're satisfied, doing their own measurements, only then does the plane push back?‑‑‑That's correct.

PN300

And in fact it's because of those checks that discrepancies have been highlighted and you've talked about when - - -?‑‑‑Yes, that's correct.

PN301

The plane's been overloaded or underloaded?‑‑‑Yes.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN302

So there's no additional responsibility, at all?‑‑‑Well, there is for us because when the engineer comes down and he says you've got it wrong, you've got to get another Delta form and fill it out correctly, and by doing the arithmetic you're going to get an answer, and the answer may be right or wrong if you right it down wrong. If you do it wrong and there are anomalies out then you have to fill in where it is wrong, so that's still your responsibility. The engineers are – now that we're doing it, they're used to us doing it and then when it does make a mistake, it does create a problem for them as well, because they go, "Come on, mate, now will you do it again?" As I said, prior to that all I would do is give my fuel receipt to the engineer, he would do the calculations, because he's got to check them anyway, so as we said, if I'm doing it, a minute and a half, and then you're going to do it, a minute and a half, I said, why don't you do it anyway? If you're going to be certifying it and signing it, and so's the captain – you know, I'm the same – I'm the same thing. What does it matter if I do it or I don't do it? I'd rather not have the responsibility to do it.

PN303

Yes, but the thing is this though, you're not having any additional responsibility in circumstances like that, whether it make sense to you or not. You're not actually taking on any additional responsibility?‑‑‑Well, if you're talking about the responsibility of pushing the plane back, no, I never had that to start with.

PN304

No?‑‑‑But I'm talking about the responsibility of not making a mistake, and delaying the flight and upsetting people's travel plans around the world.

PN305

Yes?‑‑‑That's an added responsibility.

PN306

Paragraph 13 of your statement – sorry, I'll take you to paragraph 12 first, you say at paragraph 12, "I've always understood that the documents we are required to complete are set out in dot point 10 of clause 6.4 of the enterprise agreement related only to documentation issued and provided by the respondent." But that's not actually what that provision says, is it?‑‑‑Are you talking about the 6.4 out of our EBA?

PN307

Yes?‑‑‑And are you talking about, "all tasks auxiliary to"?

PN308

No, I'm talking about documentation, your enterprise agreement - - -?‑‑‑Yes.

PN309

And I'll get it in a moment. It talks about the duties, in fact it's in the submissions for the applicant – it's probably not as convenient a place to find it – talks about the completion of documentation?‑‑‑Yes, it says that, yes.

PN310

It doesn't say, "completion of company issue documentation"?‑‑‑No, it doesn't.

PN311

No. It's not limited. It doesn't talk about this being restricted only to company issue documentation?‑‑‑No, it doesn't, no.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN312

No, it talks about documentation generally, documentation associated with the refuelling process. And that's what this form is. This form is documentation?‑‑‑That's what I'm saying. That's why I say I – as I understood it, I believed it was only our documentation. I didn't think it extended to the aircraft's log book which is their cockpit log book information, as when I was trained there we were always told, you never ever fill out anything for the companies and their logbooks or do anything like that. You just do our stuff and that's it. So it was reasonable for me to assume that the documentation only was relevant to my company documentation for archive reasons and storage, not to do with a logbook, which has always been done by an engineer.

PN313

So as you say, it was an assumption that you made, it wasn't anything more than that, and what we're talking about is a simple, one page form?‑‑‑That's correct.

PN314

Where you fill in the numbers on the form, following the guidance of the form?‑‑‑Mm-hm.

PN315

And you also have a template, as I understand it, a template, an aide memoir, a document that guides you as to how to do the work?‑‑‑Yes, the – yes, the documentation – we had templates in the truck.

PN316

Yes?‑‑‑So if you have a problem you can refer to it.

PN317

Yes, and you have a calculator issued to you?‑‑‑Yes. Yes.

PN318

So you've got all of the means to do it?‑‑‑Mm-hm.

PN319

To do this minute or minute and a half's work. So now the other point that you say here in 13, you had understood that you were not to do any calculations for airlines, for any reason?‑‑‑That's correct.

PN320

And again, that wasn't a directive that was given to you by your employer, was it?‑‑‑Yes.

PN321

That was just an assumption on your part?‑‑‑No, that was by our trainers.

PN322

You were actually carrying our calculations prior to this Delta contract, weren't you?‑‑‑No.

PN323

You were already doing calculations for Hawaiian?‑‑‑No.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN324

You were doing the fuel uplift calculations for them and for Air New Zealand?‑‑‑No.

PN325

You were doing calculations and you were issued with calculators so that you could do that work?‑‑‑No.

PN326

And all that changed, and this is your own evidence that you've this morning, was the conversion?‑‑‑Yes, the conversions, which - - -

PN327

Not the doing of calculations as a general thing but the conversion. That was the new part?‑‑‑Well, we don't do calculations, like, for New Zealand or Hawaiian. We write down the start figure and they – yes, they ask us at times have we been trained to do the – take away the amount at the start, but generally the engineers do all that because they write all the paperwork out and they like it to be neat and accurate and they just say, "Look, mate, what's the start figure?" And they take the document and they do it all. We don't do it.

PN328

Yes, and now you're being asked to do this calculation. That's the core of the issue here. That's what we're arguing about. Now paragraph 14, you say, "This work was always performed by trained and certified engineers who would then sign off"?‑‑‑Mm.

PN329

The signing off continues to be the engineer and then the captain, that's the case, isn't it?‑‑‑That's correct.

PN330

Yes, so you're not actually signing off, that hasn't changed, it's just performing the calculation itself?‑‑‑Well, I'm signing off on the fuel paperwork, I put my name to it.

PN331

So when you say at 15, "We believed that it was unsafe and an extra responsibility", that simply makes no sense at all?‑‑‑Well, it is. To me it does because we know our - - -

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN332

Because the engineers - - -?‑‑‑Sorry, I was just going to say, we're – because if everyone follows protocol it's fair enough to assume that it will go through those chains of inspection, but our engineers – because we've talked to the engineers personally and they say the same thing, "Hey, mate, we're in a rush. You're trained to do it and if I look at it, I've got to co-sign it. I'm not going to co-sign it, I'm just going to hand it forward to the captain." So therefore it's already skipped one possible check. That goes to the captain. I don't know if he's going to check it. Now he should. And if he doesn't, and it's happened before, we've done Air – Air Asia took off without being checked and it got half way and it said, we haven't got enough fuel. But the did have enough fuel. They just did the calculations wrong, themselves. So it's not that it hasn't happened. It already has happened. Airlines do leave, without following their own protocols. So therefore, if there was a problem the risk would be on me for doing it wrong, so the Swiss cheese effect. We all know what happens. I'm just saying that's why I believe it's an extra responsibility and it's extra pressure.

PN333

You say the risk would be on you but in fact, that's not the case either. You've got downstream checks for the engineer and the captain, that's the case. There are required checks for the engineer and the captain?‑‑‑Well, yes, I'm – I couldn't tell you what checks they do because I'm not an engineer or a captain.

PN334

And you also have, as part of the protocol, you've been informed of this, there are indemnities which are attached to the contracts?‑‑‑Yes. Yes.

PN335

You're provided with copies of these?‑‑‑Yes.

PN336

And I'm referring now, your Honour, to the annexures to Mr McGregor's statements, SM5 and SM6. So you were provided with these because of this issue being raised by the union, you were provided with indemnities and there are very clear indemnities that were circulated to all of the operators. So when you say that there's an additional level of liability, in fact that's been made clear to you already that that's not the case, that you are covered by these indemnities?‑‑‑If in fact it was clear that I didn't make a mistake or it wasn't gross misconduct or anything else, so there's still an element of risk there depending on what their hypothetical scenario was.

PN337

I'd like to then take you to paragraph 27 of your statement and we talked about this but I'll just make this very, very clear?‑‑‑Yes.

PN338

I already put it to you, if there's too much fuel on board, that's an issue with panel operation, isn't it, that's nothing to do with the conversion of calculations?‑‑‑Well, it can be at the end because you set the panel and if you get the required amount, and once you do the conversions, if it is deemed to be the right amount it's fine. But there are anomalies between the cockpit computer and the panel computer. They're segregated. So sometimes they're – they're – for instance, the – on a 737 we know that they're always out by nearly two or three hundred kilos at a time. A captain will come out and say, "Listen, mate, I need more." Then he looks at the panel and goes, "Oh, that's saying 15 tonne here and it's only saying fourteen seven in mine."

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN339

None of that's got anything to do with the conversion calculation or the filling in of the form?‑‑‑Well, it will. You won't be able to determine the tolerance until you do the conversion.

PN340

That's down to the operation of the panel though. If too much fuel goes on, or too little fuel goes on, that's down to the operation of the panel, isn't it?‑‑‑No.

PN341

Because you spoke about an example where an employee was disciplined?‑‑‑Mm-hm.

PN342

And that was in relation to their failure to follow the procedure for the operation of the panel, and nothing to do with the conversation calculation or the figure?‑‑‑That's right, yes.

PN343

Yes, so this, when you say at paragraph 27 about this responsibility, that has nothing to do with the additional task we're talking about, which is the filling in of the form and the conversion calculation?‑‑‑Well, I believe it does.

PN344

And no one's ever been the subject of a warning or disciplinary procedures in relation to the conversion calculation or the filling in of the form, have they?‑‑‑Not as yet. United's only been one week – we've been doing it for one week.

PN345

But in the case of others, and in particular, Delta, you've been doing it for quite some months?‑‑‑Mm-hm.

PN346

For the better part of a year?‑‑‑Yes.

PN347

And you've been doing paperwork for others, including Hawaiian, for at least that long?‑‑‑Yes.

PN348

No one's ever been the subject of any disciplinary proceedings?‑‑‑Well, Clay has, yes, for Hawaiian.

PN349

No one's – not for this one though?‑‑‑As in this one, as in United?

PN350

Disciplinary proceedings in relation to the completion of the form or the calculation of the conversions?‑‑‑No, I'd say no.

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN351

No. Clay was disciplined in relation to Hawaiian, in relation to a failure in relation to the operation of the panel?‑‑‑Well, it wasn't a failure on his behalf, it was a – yes, in the end it was a technical problem but - - -

PN352

So you then refer at 28 to some training. You had training in relation to the Delta requirements, didn't you?‑‑‑Yes.

PN353

And I don't just recall, did you have training in relation to the United requirements, yes?‑‑‑No.

PN354

No, but in the case of the Delta requirements, that was about an hour and a half, wasn't it?‑‑‑Yes, it was an online module course we did internally, and sometimes up at the terminal, depending on where it was done.

PN355

Yes, and largely a refresher of procedures you already were applying?‑‑‑No.

PN356

It wasn't an hour and a half about conversion calculations, was it?‑‑‑It was – it was all about the possibilities, and how the SG can change and all – all this – all the scenarios that they were trying to generate to get the paperwork accurate, and the reason why we were doing it.

PN357

The actual calculations part, that was about 15 minutes?‑‑‑I couldn't recall, it's – it was just – nearly a year and a half ago, about that.

PN358

It was a very small part of the training?‑‑‑Well, just in – you mean, if like one times one is easy? Like, as how quick it takes?

PN359

Yes?‑‑‑Well, yes, it's not very hard, no.

PN360

No, it's not very hard. And you also have practical, on aircraft assessment by the trainer, Lucas, didn't you?‑‑‑That's correct.

PN361

Yes. So in fact you were trained in that procedure and rated competent?‑‑‑That's right.

PN362

Yes, and so far everyone has been trained in that procedure?‑‑‑Not everyone, as yet. It's - - -

***        SHANE MICHAEL BRAZ                                                                                                          XXN MR MURRAY

PN363

But no one's failed at it, have they?‑‑‑No one's taking time – two guys have but they just haven't completed yet.

PN364

Thank you, I have nothing further.

PN365

THE SENIOR DEPUTY PRESIDENT: Anything arising?

PN366

MR WEBB: No, nothing further, your Honour.

PN367

THE SENIOR DEPUTY PRESIDENT: Okay. Thanks, very much, Mr Braz, you can go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [11.29 AM]

PN368

THE SENIOR DEPUTY PRESIDENT: Who are we doing next, Mr Webb?

PN369

MR WEBB: Mr Whiteman.

PN370

THE SENIOR DEPUTY PRESIDENT: Okay. We will just have a five minute break.

SHORT ADJOURNMENT                                                                  [11.29 AM]

RESUMED                                                                                             [11.39 AM]

PN371

MR WEBB: Yes, your Honour, the applicant now calls its next witness, Mr Darren Whiteman.

PN372

THE ASSOCIATE: Please state your full name and address?

PN373

MR WHITEMAN: Darren Paul Whiteman, (address supplied).

<DARREN PAUL WHITEMAN, SWORN                                       [11.39 AM]

EXAMINATION-IN-CHIEF BY MR WEBB                                   [11.39 AM]

PN374

MR WEBB: Good morning, Darren, thanks for coming. You've got a copy of your statement there in front of you?‑‑‑I have.

***        DARREN PAUL WHITEMAN                                                                                                           XN MR WEBB

PN375

Yes, could you just state your full name and address for the record, please?‑‑‑Yes, Darren Paul Whiteman, (address supplied).

PN376

And this is your statement that you've given freely?‑‑‑That's correct.

PN377

Yes, and you've read it and signed it, and the contents are true and correct, to the best of your knowledge?‑‑‑To the best of my knowledge.

PN378

I tender the witness statement.

PN379

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Whiteman's statement is TWU3.

EXHIBIT #TWU3 STATEMENT OF DARREN PAUL WHITEMAN

PN380

MR WEBB: Yes, do you want the signed - - -

PN381

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, please.

PN382

MR WEBB: Just a couple of quick questions, Darren. You know why we're here today, because of the dispute about this extra work, or this work to be performed for United and Delta, and whatnot?‑‑‑Yes.

PN383

What's your involvement in doing this work for Delta?‑‑‑So I'm a level 2, or grade 2 refueller for AFS. I've been there now for four and a half years. Initially we've just been doing – hooking up to a plane and then printing out the document when we've finished the refuelling, and as of late we seem to have taken on extra duties which require more paperwork and also using density to convert from pounds to gallons to litres, for the airlines.

PN384

And do you perform these tasks for - - -?‑‑‑I am now, yes.

PN385

How long have you been doing them for?‑‑‑Since we started Delta, which was last year.

PN386

So what's your concerns of performing this further work?‑‑‑Mainly the – the extra responsibility that we've been given. Making a mistake could be a very costly mistake to us. I am – I am also concerned, making a mistake could cost me my job. No one seems to be able to secure that for us, at all.

***        DARREN PAUL WHITEMAN                                                                                                           XN MR WEBB

PN387

Okay. Nothing further, your Honour.

PN388

THE SENIOR DEPUTY PRESIDENT: Thanks. Mr Murray?

CROSS-EXAMINATION BY MR MURRAY                                  [11.42 AM]

PN389

MR MURRAY: Yes, thank you. Mr Whiteman, I just have a few questions. I want to take you to your statement. Do you have a copy of your statement?‑‑‑Yes, thanks.

PN390

If you go to paragraph 8 of your statement, you say, "very detailed, Delta Airlines' paperwork." You're familiar now with the paperwork that Delta requires, aren't you?‑‑‑That's correct.

PN391

And that's a fuel service record?‑‑‑A fuel service record for Delta.

PN392

Yes. Do you recognise this document here?‑‑‑Yes, I do. That's Delta's paperwork.

PN393

I'm showing the witness Annexure MS2, to the statement of Susan McGregor. That's the paperwork you're talking about for Delta?‑‑‑That's correct.

PN394

And you say, very detailed, but in fact the paperwork is a single page form, isn't it?‑‑‑Yes, for that.

PN395

And on that form you're given the figure for the aircraft departure fuel, or required fuel?‑‑‑Yes.

PN396

You also have the arrival fuel?‑‑‑Which we take.

PN397

Which you take?‑‑‑Yes.

PN398

And you do a subtraction to get the total pounds to be dispensed?‑‑‑Yes. Sorry, mate, I haven't got that sheet in front of me, so I'm going off you.

PN399

Okay. Would you prefer me to come over and show it to you? Might I approach the witness?

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN400

THE SENIOR DEPUTY PRESIDENT: Yes, that's fine, yes.

PN401

MR MURRAY: So I'm showing the witness Annexure SM2 - - -?‑‑‑Yes.

PN402

To the statement of Susan McGregor. So you calculate that figure there, and I'm pointing to the, "Total dispatch pounds"?‑‑‑Correct.

PN403

So that's a subtraction from the required departure fuel minus the actual fuel on the aircraft?‑‑‑So that total balance there where you're saying is our arrival fuel.

PN404

Yes?‑‑‑Yes.

PN405

And so that gives you the pounds that you're to add, and you've got the pounds that are actually - - -?‑‑‑Subtract, sorry.

PN406

Yes?‑‑‑Yes.

PN407

THE SENIOR DEPUTY PRESIDENT: Subtract, yes?‑‑‑Yes, subtract.

PN408

MR MURRAY: Yes, so you subtract the aircraft's actual arrival fuel - - -?‑‑‑That's correct.

PN409

From the amount that the aircraft is to depart with?‑‑‑That's correct.

PN410

And that gives you the amount of fuel that you're to add - - -?‑‑‑That's correct.

PN411

In pounds, yes?‑‑‑Yes.

PN412

And you then divide that by 6.70?‑‑‑Yes.

PN413

To convert from pounds to gallons?‑‑‑Yes.

PN414

And then you do a further calculation, a multiplication, to get the result in litres?‑‑‑That's correct.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN415

Okay. And that's really what we're talking about, that's the paperwork and the requirements that we're talking about?‑‑‑For Delta.

PN416

Yes. So when you say the documents, the very detailed paperwork, what we're talking about is those pieces of arithmetic?‑‑‑That's correct.

PN417

Yes. Now as to the first part, the departure fuel minus the actual on board fuel, the – I think it's called the uplift calculation - - -?‑‑‑Yes.

PN418

That's something that actually had been done for other airlines prior to Delta, isn't it?‑‑‑Not in the paperwork.

PN419

There have been uplift calculations done for Air New Zealand, for example?‑‑‑Which we do on a scrap piece of paper.

PN420

Yes. You'd done the calculations for them and you'd also done calculations for Hawaiian?‑‑‑No, that's – that's not right.

PN421

THE SENIOR DEPUTY PRESIDENT: Sorry, can you just explain about Air New Zealand, just so - - -

PN422

MR MURRAY: Yes.

PN423

THE SENIOR DEPUTY PRESIDENT: What you do there, you've got – can you just tell me what you do there?‑‑‑So when we approach the plane we put on a provisional fuel, which we all know the amount, and then we will sit there for 20 minutes. We will then go to the headset, speak to the captain and hopefully they will give us a final fuel. We then put that on. We take an arrival fuel. We subtract the arrival fuel from the final fuel.

PN424

Yes?‑‑‑And then we divide it by the density that we – we have with us.

PN425

Yes?‑‑‑And all that is, that just gives us minimum litreage, so all we do is making sure that that minimum litreage is on the plane before we disconnect.

PN426

And do you write that down?‑‑‑No.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN427

You don't write that down?‑‑‑No, we don't record it anywhere.

PN428

No, okay. Right. But you've been doing that for how long, do you know?‑‑‑Twelve, 18 months now.

PN429

Okay?‑‑‑Yes. But we don't – yes, we definitely don't record it.

PN430

Right, but this is – so this is for Air New Zealand?‑‑‑That's correct.

PN431

Okay, right. Thanks?‑‑‑Yes.

PN432

MR MURRAY: So the key difference for Delta then, based on what your evidence is, is that you write it on a piece of paper in the form of this document?‑‑‑That's formal, yes.

PN433

Yes. And the only other difference is the division by 6.7 to convert from pounds to gallons?‑‑‑Yes.

PN434

And then the conversion to litres?‑‑‑That's correct.

PN435

Yes, so that's the only new part of it. All of the other things are tasks that you'd previously done and what we're talking about here, the additional duties, those calculations and writing them on this piece of paper?‑‑‑That's correct.

PN436

Have you done the training for United yet?‑‑‑I have.

PN437

And that's a similar form, isn't it?‑‑‑A little bit more detailed.

PN438

Well, I know have Annexure SM3 to the statement of Susan McGregor. Is that the form that you're talking about?

PN439

THE SENIOR DEPUTY PRESIDENT: So which one's this?

PN440

MR MURRAY: This is Annexure SM3.

PN441

THE SENIOR DEPUTY PRESIDENT: Three, sorry, yes.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN442

MR MURRAY: It's the next page, your Honour.

PN443

THE SENIOR DEPUTY PRESIDENT: The next page, yes, okay.

PN444

MR MURRAY: This is a slightly different layout but it has a calculation of the fuel on arrival, and the desired fuel, and therefore the fuel after?‑‑‑Yes.

PN445

So that you can calculate the fuel to be added?‑‑‑Mate, I'll have to go on yours - - -

PN446

Perhaps I might approach again - - -?‑‑‑Because I did the training - - -

PN447

Yes?‑‑‑Nearly six, seven weeks ago, and I haven't even done a flight yet so I may have to be retrained in it.

PN448

Right. So you're calculating the amount of fuel to add?‑‑‑Yes.

PN449

In pounds?‑‑‑Yes.

PN450

And then you convert it to gallons?‑‑‑That's correct.

PN451

And then you do another operation on the calculator to get it into litres?‑‑‑That's correct, from density, yes.

PN452

Yes, so the layout's different but it's the same arithmetic?‑‑‑And the bottom is completely different, as well.

PN453

Yes?‑‑‑And that's sheet 1, and there should be a sheet 2, is that correct?

PN454

This is the calculation that you're being called upon to do?‑‑‑The sheet 1?

PN455

Yes. So that's the nature of the task, that there's now this requirement for a calculation. Now you're actually given a calculator, aren't you? You're issued a calculator by the employer?‑‑‑Yes. They're still in the truck, yes.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN456

Yes, and you're also given a template document, a bit of an aide memoir, a bit of a prompt, so you can refer to it?‑‑‑No, I haven't been given one of them, and they're not in our trucks, they're not based in our truck.

PN457

Your colleagues have said that they have them?‑‑‑Okay.

PN458

Yes?‑‑‑Six weeks ago, where are they?

PN459

Okay. So you are given these to carry out this calculation, and I put it to you, the calculation is not very complicated. It isn't, is it?‑‑‑As long as you get it right.

PN460

And it doesn't take long. There's about a minute's work in it, isn't there?‑‑‑No, because there's two sheets so it's going to take longer than that.

PN461

But the actual calculation of the conversion?‑‑‑It shouldn't, no.

PN462

No. And you've referred at paragraph 8 to, "Level 3 IATA refuelling service"?‑‑‑Yes.

PN463

Are you familiar with the IATA fuel service levels?‑‑‑The what, sorry?

PN464

Are you familiar with the IATA – you referred in your statement, paragraph 8 - - -?‑‑‑Yes.

PN465

You've referred to the "level 3, International Air Transport Association refuelling service"?‑‑‑Yes.

PN466

Are you familiar with the IATA service levels?‑‑‑Not until this dispute started.

PN467

Okay. So when you said in your statement that it's IATA level 3, that's just guesswork on your part, isn't it?‑‑‑No, because Dave Jackman used that when he spoke to me.

PN468

I put it to you that in fact it's not IATA level 3, at all. The conversion calculations aren't IATA Level 3?‑‑‑Have you seen – I haven't seen it.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN469

"I have here the IATA guidance material on the standard inter-plane fuelling procedures." Are you familiar with those?‑‑‑As I said, until this dispute I'd never heard of IATA. We do 25 modules through Caltex and none of that is discussed in it.

PN470

Okay, so that's just someone else's opinion, that's not your evidence then?‑‑‑No, because Dave Jackman actually used that word, IATA.

PN471

You also say at paragraph 9, "I have always understood that the documents we were required to complete are set out in dot point 10 of clause 6.4 of the enterprise agreement." What is dot point 10 of clause 6.4 of the enterprise agreement? Do you recall it?‑‑‑No, you may have to refresh me with the EBA.

PN472

Well, it's in your statement. What are you referring to there?

PN473

THE SENIOR DEPUTY PRESIDENT: Perhaps you can show him the – so if you (indistinct) approach and - - -

PN474

MR MURRAY: I will in due course, your Honour.

PN475

THE SENIOR DEPUTY PRESIDENT: Yes.

PN476

MR MURRAY: That's actually someone else's words, isn't it?‑‑‑No.

PN477

That's not your words?‑‑‑No.

PN478

Well, what is dot point 10 of clause 6.4?

PN479

MR WEBB: I'm just going to object, your Honour. He has answered the question. He doesn't know what it is at this point in time. Perhaps when he made the statement he was referring to it. I think it would assist the witness and the Commission if he was provided with a copy of the enterprise agreement.

PN480

MR MURRAY: Yes, well might I approach?

PN481

THE SENIOR DEPUTY PRESIDENT: Yes.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN482

MR MURRAY: See, here's dot point 10, "Completion of documentation." Now it doesn't say anywhere there, "completion of company issued documentation"?‑‑‑No, I don't see what mean – word, "Nitra" means.

PN483

Just confine yourself. We'll come back to the word, "Nitra"?‑‑‑Okay, sorry.

PN484

Completion of documentation – there's nothing there that says, "completion of company provided or company issued documentation, is there?‑‑‑It doesn't say that in that, no.

PN485

No.

PN486

So when you say you'd always understood, that again, that's just guesswork, isn't it, that's just an assumption?‑‑‑No, I just believed that that's what we've always done since I've been there. We've only ever done company paperwork, so why are we now doing airline paperwork?

PN487

Since you've been there, employed for just over twelve months?‑‑‑Full time. It was casual for three years before that.

PN488

In fact, I put it to you that there is other paperwork that's been completed, not company paperwork, and that's included, amongst other things, Air New Zealand, and for Hawaiian. This is paperwork that's issued by those companies and sent through. Hawaiian, for example, they send through their documentation. That's documentation issued by them and not the company?‑‑‑That's correct. So we're not doing any conversions with Hawaiian, are we?

PN489

Well, it's not about the conversions, at this point. This is about what you say that only documents issued and provided by the respondent, but in fact the reality is, you have been doing documents provided by others, including customers?‑‑‑Well, if you put it that way, yes.

PN490

Yes, so it's actually not correct, what you've said in that part of your statement, paragraph 9?‑‑‑(No audible reply)

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN491

Now your Honour, as I've already dealt with the question of Dave Jackman may or may not have said, I don't think I need to press that with this witness but I do flag as an issue, that this witness again has said, or attributed certain things to Mr Jackman which your Honour has indicated are not relevant so I won't pursue that line on that basis. Here I'm saying that Dave Jackman never did say that these were outside the scope of the agreement. You have then had some training and you've referred at paragraph 14 to level 3 refuelling, but as we've already canvassed you really don't know what level 3 refuelling means, other than what people have told you. You've now been trained, however, in the requirements of Delta, that's the case, isn't it, you've had the training?‑‑‑That's correct.

PN492

And you did the online training, and you also had an on aircraft assessment done by the trainer, Lucas?‑‑‑No.

PN493

Well, Lucas did an on aircraft assessment to make sure that you were competent?‑‑‑Not in me, he didn't.

PN494

And the training itself was about an hour and a half, you've said, but of that training, only a small part was required for this calculation, wasn't it?‑‑‑There was probably about a 15 minute window on it.

PN495

Yes, because it's such a simple thing, isn't it?‑‑‑I suppose that's easy to say in this room.

PN496

Yes, but it is a very simple thing. It's a simple piece of arithmetic, filling in a form?‑‑‑You don't want to get it wrong.

PN497

You've then talked about what other might do, and what they might do is up to them but ultimately we're talking about a simple piece of arithmetic which takes about a minute?‑‑‑You don't want – again, you don't want to get it wrong.

PN498

And you say you don't want to get it wrong but that's true of all of the duties that you perform as an employee, isn't it?‑‑‑Correct. But the paperwork's a pretty big one.

PN499

And in this particular case nothing's changed in terms of your responsibility because the paperwork isn't the sign off of the aircraft to push back, is it?‑‑‑Is the paperwork a legal document for the airline?

PN500

THE SENIOR DEPUTY PRESIDENT: With respect, you just answer the questions.

PN501

MR MURRAY: I ask the questions and you answer them?‑‑‑Sorry, your Honour.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN502

That's how it works here. The completion of the document doesn't actually add to your responsibility. You're responsible for performing all of your duties in accordance with your work procedures, aren't you?‑‑‑If I'm trained in that, yes.

PN503

Yes, and you've been trained in the requirements of Delta, so that applies to it too, doesn't it? That requirement to do that job (indistinct), isn't it?‑‑‑Yes, but I haven't been signed off on it.

PN504

And following your completion of the paperwork, that isn't an authority for the aircraft to fly, is it?‑‑‑I don't know.

PN505

No one takes the aircraft off the ground on your say-so, do they?‑‑‑I don't know. You'd have to ask the airline.

PN506

The paperwork, in fact, goes to the engineers and then it's the pilot, the captain of the aircraft - - -?‑‑‑No, it doesn't go to the engineer, at all.

PN507

The captain of the aircraft who signs off, you're not the one that authorises the aircraft to take off?‑‑‑That's correct.

PN508

Yes, in fact the aircraft captain has the responsibility and they check, themselves, don't they?‑‑‑I hope so.

PN509

And you're aware of that because you're involved in speaking with the captain of the aircraft at - - -?‑‑‑No, I'm not. I don't speak to the captain of the aircraft for Delta.

PN510

The aircraft captain is the one, and so your responsibility doesn't extend to clearing the aircraft to take off the ground?‑‑‑I don't talk to the captain, if that's what you're asking.

PN511

THE SENIOR DEPUTY PRESIDENT: So with Delta, do you talk to anybody on the plane?‑‑‑No.

PN512

You don't put the headphones on and talk to anyone?‑‑‑No.

PN513

So are there other airlines you do that for though?‑‑‑Yes.

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN514

So who are they?‑‑‑Air New Zealand, yes.

PN515

Right?‑‑‑And now, United.

PN516

So when you filled out the – coming back to Delta, when you've filled out the form - - -?‑‑‑Yes.

PN517

What do you do with it?‑‑‑We hand it to a representative from Menzies who then take it upstairs.

PN518

Right?‑‑‑So we – really, we don't have anything to do with Delta staff, at all.

PN519

No, and just to help me - - -?‑‑‑Yes.

PN520

Are you – is this on the tarmac at that stage?‑‑‑That's correct.

PN521

It is, yes. Yes, so – yes.

PN522

MR MURRAY: So it's actually not correct and a huge exaggeration to say that there's a lot more time at the aircraft and a lot more responsibility. Neither of those is the case. We're talking about a calculation that adds about a minute, and responsibility which is unchanged?‑‑‑Yes, it's about five minutes, at the end of fuelling.

PN523

Thank you, I've nothing further, your Honour.

PN524

THE SENIOR DEPUTY PRESIDENT: Anything, Mr Webb?

PN525

MR WEBB: Nothing further, your Honour.

PN526

THE SENIOR DEPUTY PRESIDENT: Thanks, very much, Mr Whiteman?‑‑‑Thank you.

PN527

You can sit down now, thank you?

<THE WITNESS WITHDREW                                                          [11.58 AM]

***        DARREN PAUL WHITEMAN                                                                                                   XXN MR MURRAY

PN528

THE SENIOR DEPUTY PRESIDENT: Just before we go to the last witness, I mean, are we able to do your witnesses – are they available this afternoon?

PN529

MR MURRAY: Yes, your Honour, they are outside. We'll probably be able to finish today.

PN530

THE SENIOR DEPUTY PRESIDENT: Yes, I'd hope so, if we've got - - -

PN531

MR MURRAY: Yes.

PN532

THE SENIOR DEPUTY PRESIDENT: Good. All right, thank you.

PN533

MR WEBB: Yes, your Honour, the applicant now calls its final witness, Mr Rodney Charles Pohlmann.

PN534

THE ASSOCIATE: Please state your full name and address?‑‑‑Rodney Charles Harry Pohlmann, (address supplied).

<RODNEY CHARLES HARRY POHLMANN, SWORN              [11.59 AM]

EXAMINATION-IN-CHIEF BY MR WEBB                                   [11.59 AM]

PN535

MR WEBB: Good morning, Rodney?‑‑‑Good morning.

PN536

Have you got a copy of your statement in front of you?‑‑‑Yes.

PN537

Yes, could you just please state your full name and address for the record?‑‑‑My full name Rodney Charles Harry Pohlmann, (address supplied).

PN538

Just a couple of questions from me before I pass you over to my friend. What's your current position at AFS?‑‑‑My position at AFS is a Grade 2 Refueller, for refuelling aircraft 4.

***        RODNEY CHARLES HARRY POHLMANN                                                                                    XN MR WEBB

PN539

Do you want to tell us a little bit about what you did before that?‑‑‑I was a – I'd been an aircraft engineer from the time I left school. I completed my apprenticeship in 1983. I then, by 1990, became a licensed aircraft engineer on aircraft below 5700 kilos. I had a business that operated at Bankstown Airport, and then 2009, I joined Emirates Airline as a line station engineer for the period of one and a half years, and then at the closure of the Sydney station, moved on to a company called, Aircraft Aviation Services, or AMSA, which is owned by Singapore Airlines.

PN540

So you're aware of what it is we're here about today and the duties that you've been asked to perform?‑‑‑Yes, I am.

PN541

Do you want to just put in your own words, what it is that you think you've been asked to do?‑‑‑As a refueller or as an engineer?

PN542

As the – well, you're a refueller now and we're here about the refuelling so - - -?‑‑‑Okay, as a refueller.

PN543

As a refueller?‑‑‑The new tasks that have been put before us for – relating to United Airlines is to carry out calculations using density supplied by the representative or dispatcher to correctly refuel the aircraft to a correct capacity assigned by the load control of United Airlines.

PN544

And who performed this job before the refuellers were asked to do it?‑‑‑I never performed it as a refueller.

PN545

Do you know who was meant to perform it?‑‑‑Yes, before, the engineers – the engineers performed this task.

PN546

How do you know that?‑‑‑Because we did United prior to this new agreement. We did United and they calculated all the figures.

PN547

They or you?‑‑‑They did.

PN548

They?‑‑‑Mm.

PN549

So as an engineer, you never did this for - - -?‑‑‑As an engineer for other airlines, yes, I did.

PN550

What, similar – similar - - -?‑‑‑Yes.

***        RODNEY CHARLES HARRY POHLMANN                                                                                    XN MR WEBB

PN551

And what's your concerns about this being allocated to refuellers as opposed to engineers?‑‑‑There is an interconnection between what we carry out as a refueller and the navigation and operations of aircrafts, as well as the documentation has ramifications for aircraft legality to fly.

PN552

So why is it a concern that you're being asked to do these now, from your point of view as - - -?‑‑‑From my point of view? Because it is part of the package of fit to fly, or maintenance release issued for aircraft release, it is important that this documentation is filled out correctly, and it has legal ramifications if it's done incorrectly.

PN553

All right. You have been employment with AFS since 2012?‑‑‑Correct.

PN554

When did these extra thins, the calculations and the things, when did that commence?‑‑‑They started in – they started at the end of 2015, roughly, from my recollection.

PN555

And prior to that was there anything else that had been introduced in your time?‑‑‑No, we never did any other aircraft with calculations prior to that.

PN556

Nothing further from me, thanks.

PN557

THE SENIOR DEPUTY PRESIDENT: So did we mark Mr Pohlmann's statement?

PN558

MR WEBB: Sorry - - -

PN559

THE SENIOR DEPUTY PRESIDENT: It's TWU4, yes.

PN560

MR WEBB: Yes. So I'll tender the statement of the witness, sorry, your Honour.

PN561

THE SENIOR DEPUTY PRESIDENT: Yes.

PN562

MR WEBB: I'll hand up one.

PN563

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks. So Mr Pohlmann's statement is TWU4.

EXHIBIT #TWU4 STATEMENT OF RODNEY CHARLES HARRY POHLMANN

***        RODNEY CHARLES HARRY POHLMANN                                                                                    XN MR WEBB

CROSS-EXAMINATION BY MR MURRAY                                  [12.04 PM]

PN564

MR MURRAY: Just a few things, Mr Pohlmann, just by way of cross-examination on your statement, so do you have your statement with you there?‑‑‑Yes, I do.

PN565

So in the statement you talk about your history as an aircraft maintenance engineer and you talk about the way that other companies do things, but if I take you to paragraph 13 you say that most of the refuellers working for the respondent only have a limited understanding of aircraft refuelling and associated systems?‑‑‑Mm.

PN566

And the interconnection between them in fuelling and navigation - - -?‑‑‑Mm.

PN567

In fact, that is not a requirement of what we're talking about here at all, is it? What we're talking about here is simply a calculation of a conversion, that's the situation, isn't it?‑‑‑No, it's more than that.

PN568

The issue that's been put on your behalf by the union is that there's some newness about completing a form for Delta and more recently, for United. And you've said in your evidence about the conversion calculation. That's really what this is about, isn't it?‑‑‑It's not just about the calculation, it's the paperwork in general. That documentation carries some weight. It's not just a – a calculation. It has ramifications as we are signing that document to say that we have completed it and certify that this documentation is carried out correctly with all the relevant information to create the package for the aircraft to fly.

PN569

Have you completed the training for the requirements for Delta?‑‑‑Yes, I have, yes.

PN570

So you're familiar with the fuel service record for Delta?‑‑‑That's correct.

PN571

And that's the form that you're talking about?‑‑‑That's the documentation?‑‑‑Both that and United. I've done both training, yes.

PN572

So if we just look at Delta first, that's a one page form?‑‑‑Yes.

PN573

And I'm referring to this form, is that familiar to you?‑‑‑That's correct.

***        RODNEY CHARLES HARRY POHLMANN                                                                             XXN MR MURRAY

PN574

So I'm showing the witness Annexure SM2, which is the statement of Susan McGregor. And so what's required in completing this form, you have a requested departure fuel given to you by the customer?‑‑‑That's correct.

PN575

And you have the actual arrival fuel which is the fuel that the plane has in it at the time you do the refuelling, and you subtract the one from the other to work out how many pounds of fuel you're going to need to pump?‑‑‑That's correct.

PN576

And you then divide that by 6.70?‑‑‑Mm-hm.

PN577

Just the specific gravity of the fuel - - -?‑‑‑Yes.

PN578

To convert to gallons, US gallons?‑‑‑(No audible reply)

PN579

And then you convert the US gallons to litres by doing another multiplication or division sum?‑‑‑That is correct.

PN580

And that's what is in issue here, the completion of that form?‑‑‑That's correct.

PN581

That requirement doesn't, in fact, require any knowledge of associated systems. Taking that form in isolation, all that is, is arithmetic?‑‑‑Yes.

PN582

And similarly for the United form, and you've done the training and you're familiar with the form - - -?‑‑‑Correct.

PN583

I'm showing the witness Annexure SM3 to the statement of Susan McGregor. That's the form that you're familiar with?‑‑‑Correct.

PN584

And that again involves filling in numbers, the fuel on arrival, the requested departure fuel, how much to add in pounds, and then converting that to gallons?‑‑‑Mm-hm.

PN585

Then converting the gallons to get the litres. So there's the subtraction and a division and a multiplication?‑‑‑Correct.

PN586

And that doesn't require any knowledge of the associated systems to fill in that. That's just arithmetic, isn't it?‑‑‑Yes.

***        RODNEY CHARLES HARRY POHLMANN                                                                             XXN MR MURRAY

PN587

And you're provided, for that purpose, with a calculator?‑‑‑Correct.

PN588

Some have also said that they're provided with a template or an aide memoir document to refresh their memory if they need it?‑‑‑On Delta, yes.

PN589

Yes. And so it's in fact a gross exaggeration to say that the employees in question require any knowledge of interconnection between refuelling and navigation. All they need to be able to do is fill in a form, using a calculator and punching in the numbers?‑‑‑For the documentation?

PN590

Yes?‑‑‑Yes.

PN591

Everything else that they do is task that they have performed previously as an ordinary part of their role, aren't they?‑‑‑As an ordinary part - - -

PN592

Everything else that the employees are doing is not new. It's tasks that they've been performing as part of their role. This is the only new part?‑‑‑It is part of the new role, yes. Getting the arrival figure and actually utilising it to calculate for fuel distribution, yes.

PN593

But they're not doing fuel distribution - - -?‑‑‑Yes, we - yes, we are.

PN594

They're just doing the calculation of the amount to dispense?‑‑‑We're actually doing fuel distribution. Those tanks – you have a – fuel varies between each tank, and monitoring imbalances.

PN595

But there's nothing on the Delta form that talks about the amount in each tank?‑‑‑Yes, it does.

PN596

The calculation, as you've just said, is a simple piece of arithmetic?‑‑‑No, you're given - - -

PN597

And it takes about a minute?‑‑‑You are given a figure – on Delta you are given a figure of what fuel is supposed to be put in each tank.

***        RODNEY CHARLES HARRY POHLMANN                                                                             XXN MR MURRAY

PN598

Yes?‑‑‑But the aircraft does – never makes that figure so you have to recalculate or readjust for the centre tank because the wings will – depending on the SG, will change to what capacity the tanks have because they rely on capacitance fuel system and not on volume fuel system.

PN599

THE SENIOR DEPUTY PRESIDENT: But is that new? I mean, didn't you always have to do that?‑‑‑The – as an AME, I – or as a LAME, I understand that but fuellers don't understand that.

PN600

But the idea of having to – so you load each tank separately, is that - - -?‑‑‑Correct.

PN601

Yes, but that was always the case, wasn't it? That's not a new thing?‑‑‑With calculating SG, no, it varies. It's varied in this particular case, yes. It's new.

PN602

MR MURRAY: But you don't calculate the balancing as between the tanks, there's actually no provision for you to do that on these forms?‑‑‑We do because you have to have the end result, and yes, you have to have them on it so the – from what they give you, the figure they give you for the distribution, changes to what you actually put in the tank.

PN603

I put it to you that that's not in fact what these forms show. This form shows, and I'm showing you SM3, this shows the desired amount for each tank - - -?‑‑‑That's correct.

PN604

As a printed fixed figure, which you don't calculate?‑‑‑That's what – the manual states the capacity that the fuel tanks are.

PN605

All you do is calculate how much went into each tank?‑‑‑Totally - - -

PN606

It's not for you to balance them?‑‑‑If it changes, how do you – how does it affect your calculation?

PN607

There is no provision on this form for you to do that?‑‑‑But how does it – how – as you understand the paperwork, how do you see it changes?

***        RODNEY CHARLES HARRY POHLMANN                                                                             XXN MR MURRAY

PN608

Well, with respect, I ask the questions. So let's move on. The claim that you have that a failure to properly implement these systems, that again is a gross overstatement, a gross exaggeration. "If not detected, could lead to loss of aircraft and life." The refuellers are not certifying the aircraft ready to take off, are they?‑‑‑With that documentation it is a part of the package of the fit to fly. The – having the correct fuel document is part of that. You can't say that – you can't say that incorrect fuelling has not caused incidents all around the world. There was recently a case in South America where an aircraft crashed and killed a whole football team because it was incorrectly fuelled.

PN609

But the aircraft refuellers don't have that responsibility. That document goes to the dispatcher and then to the aircraft captain for independent checks?‑‑‑But the dispatcher is only a facilitator for the documentation.

PN610

Each of those steps is a control step where they independently check the fuel load as part of their requirements before the aircraft takes off?‑‑‑The dispatcher does not check the fuel load.

PN611

And the aircraft captain is the one who checks and certifies. The refueller doesn't certify the that aircraft is fit to fly?‑‑‑The documentation asks for a signature and an employee number for certification.

PN612

THE SENIOR DEPUTY PRESIDENT: Yes, but just to – could you answer the question, which is, isn't it the pilot who actually determines whether the aircraft has been properly loaded?‑‑‑The pilot and engineer normally check the fuel load.

PN613

MR MURRAY: Thank you. I've nothing further.

PN614

THE SENIOR DEPUTY PRESIDENT: Anything, Mr Webb?

PN615

MR WEBB: Yes, that concludes the applicant's evidence.

PN616

THE SENIOR DEPUTY PRESIDENT: Thanks, very much, Mr Pohlmann?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [12.13 PM]

PN617

THE SENIOR DEPUTY PRESIDENT: So are we able to start with your - - -

PN618

MR MURRAY: Yes, we can start straight away if you like, your Honour.

PN619

THE SENIOR DEPUTY PRESIDENT: All right, great.

***        RODNEY CHARLES HARRY POHLMANN                                                                             XXN MR MURRAY

PN620

MR MURRAY: I might just take the opportunity, very briefly, to outline and open our case before we do call the next witness, and I don't do so to delay things unnecessarily but just to make things very, very clear. Your Honour has correctly pointed out that this is solely about whether these duties, or this duty, is within the classification structure or not, and we've narrowed it right down now. The duty in question is the performance of a conversion calculation which we say is a very simple, straightforward piece of arithmetic that takes very little time, about a minute, a minute and a half. It's within the scope of the - - -

PN621

THE SENIOR DEPUTY PRESIDENT: And completion of associated documentation.

PN622

MR MURRAY: Yes, but the completion of documentation is not new, your Honour. We say that the completion of documentation is not the new part. The panel operation is not new either and that, I think, has been conceded. It's certainly been in place for many years for a number of airlines. So the panel operation is not new. Completion of paperwork, per se, is not new. All that really is new, is the calculation of conversion between US and metric, which is essentially a very straightforward piece of arithmetic.

PN623

The employees are given all of the tools, they're given a calculator, they're given the figure by which they multiply the specific gravity of the fuel. They don't need to measure the specific gravity. That's not part of their duties. They're given that number. Divide this in pounds by 6.70, gives you gallons. Divide that by 3.78, that gives you litres. And that's what we're arguing about. And we say that's neither new, nor challenging. It's very minimal and it certainly is within the scope of the classification of an Operator 1 under the agreement. It's part of the completion of paperwork. That's squarely covered. There is no such restriction as to paperwork only from the employer.

PN624

So what we say is that there is no basis for this claim at all, and my friend has sought to have it both ways by saying, well, initially it's all about it being novel and being United, therefore novel, but then saying, well, it's actually not really just United, it's also these others, which the employees have been doing this service for, for quite some time now, for the better part of two years.

PN625

THE SENIOR DEPUTY PRESIDENT: We've had a bit of a discussion about the, you know, post agreement conduct.

PN626

MR MURRAY: Yes.

PN627

THE SENIOR DEPUTY PRESIDENT: And you can't rely on conduct that's occurred after the agreement to determine what the agreement says. I think basically the story is, or the position put by the union is essentially, to some extent they've done this extra work, "under protest", as it were, because they all – or as a sort of concession – they didn't concede that it was covered by the agreement but they were willing to do it in good faith or whatever, because they thought that it would be taken into account when the agreements were renegotiated. You know, I sort of – I don't want to get too hung up on what's happened since the agreement was made because I don't think it actually helps me a great deal. I also need to clearly understand what the duties are we're talking about and how they vary from what people have done previously, and also how that fits within what the agreement says, but you know, whether they've done it for other people or not, you know, the last couple of years, is kind of, at the end of the day, not terribly important, I don't think.

PN628

MR MURRAY: Depending on when they started, in the case of the panel operations.

PN629

THE SENIOR DEPUTY PRESIDENT: But it all seems to be since the agreement. The agreement is the 2014 agreement.

PN630

MR MURRAY: Certainly the panel operation is not - - -

PN631

THE SENIOR DEPUTY PRESIDENT: No, no. But you agreed. I mean, you've said that, that that's not new, anyway.

PN632

MR MURRAY: Yes.

PN633

THE SENIOR DEPUTY PRESIDENT: But in terms of what the new – the, in quotes, "new duties", and that's the term that's used - - -

PN634

MR MURRAY: Yes.

PN635

THE SENIOR DEPUTY PRESIDENT: I don't think there's any – I haven't heard any evidence, I don't think, that anyone did that, or these people did that before 2014. So whether they didn't do it in 2015, 2016 or 2017, kind of doesn't really, I don't think – it's not obvious to me why that would make any difference.

PN636

MR MURRAY: Well, it's the respondent's case that none of this makes any difference to the duties that are performed, but anyway, having said all of that, I now call Susan McGregor.

PN637

THE SENIOR DEPUTY PRESIDENT: Right, okay.

PN638

THE ASSOCIATE: Please state your full name and address?

PN639

MS McGREGOR: Susan Maree McGregor, (address supplied).

<SUSAN MAREE MCGREGOR, SWORN                                      [12.19 PM]

EXAMINATION-IN-CHIEF BY MR MURRAY                             [12.19 PM]

PN640

MR MURRAY: Ms McGregor, did you for the purpose of these proceedings, make a statement dated 17 May 2017?‑‑‑I did.

PN641

And is that statement one that you have with you today?‑‑‑I don't have it on me but - - -

PN642

Perhaps I can provide you with a copy?‑‑‑Thanks.

PN643

Is that the statement that you made?‑‑‑Correct, yes.

PN644

Is that statement true and correct in every detail?‑‑‑Correct, yes.

PN645

And is that evidence that you now give on oath in these proceedings?‑‑‑I do.

PN646

I tender the statement of Susan McGregor dated 17 May 2017.

PN647

THE SENIOR DEPUTY PRESIDENT: Yes, so Ms McGregor's statement is AFS1.

EXHIBIT #AFS1 WITNESS STATEMENT OF SUSAN McGREGOR DATED 17/05/2017

PN648

MR MURRAY: Thank you, your Honour, I've nothing further.

CROSS-EXAMINATION BY MR WEBB                                         [12.20 PM]

PN649

MR WEBB: Good morning, Susan?‑‑‑Hello.

PN650

***        SUSAN MAREE MCGREGOR                                                                                                   XN MR MURRAY

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

I've just got a few questions for you today. Now you've only been at AFS for about six months, haven't you?‑‑‑Correct, yes.

PN651

So you obviously weren't involved in any of the enterprise agreement negotiations or anything prior to your time there in 2014. I'll just take you to paragraph – have you got your statement in front of you now?‑‑‑Yes.

PN652

I'll just take you to paragraph 18 of your statement?‑‑‑Yes.

PN653

So you say it is your view that this is in line with the job description outlined for Operator 1 under the EBA. You're not really qualified to make that statement, are you? I mean, it's just your opinion?‑‑‑Opinion based on working in previous roles (indistinct) by people - - -

PN654

But you haven't been working for AFS for over six months?‑‑‑Just my opinion.

PN655

You weren't involved in any of the actual negotiations of the enterprise agreement?‑‑‑Not this particular enterprise agreement, no.

PN656

No, so you don't actually know what was in the mind of the parties when it was made. So you don't really know if it's within – - -?‑‑‑Sure.

PN657

That's just your opinion. Yes, okay.

PN658

In relation to this extra work that the refuellers have been asked to perform, are you aware if similar duties have been asked to be performed by those refuellers, other than just for United Airlines? So is there other airlines that they are performing these similar tasks for?‑‑‑Yes.

PN659

Can you tell me who - - -?‑‑‑Yes, Delta.

PN660

Sorry?‑‑‑Delta.

PN661

Delta. What about anyone else, Hawaiian?‑‑‑Similar ones for Hawaiian. It's not the same. It's very similar but not identical.

PN662

Yes, and are you aware of when they started doing these tasks for Delta? Do you know when about?‑‑‑Yes, it was roughly 12 months ago.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN663

Sorry?‑‑‑Roughly 12 months ago.

PN664

Twelve months ago, okay. And Hawaiian, do you - - -?‑‑‑I'd have to look at my statement to get the exact date. I don't know, off the top of my head.

PN665

Would it be fair to say that it was in around 2015?‑‑‑Yes.

PN666

Yes, okay, thank you. These extra duties, particularly the filling out of the form and the calculation, they're additional duties that AFS are providing as an additional service to the airlines, is that correct?‑‑‑It's an additional service to - - -

PN667

It's an additional service, so it's extra work, isn't it?‑‑‑If you call a couple of minutes of filling out a form additional work - - -

PN668

It's still work, isn't it? It still is something extra that they're required to do, isn't it?‑‑‑That – yes.

PN669

Yes. The refuellers initially refused to do these duties, or at least, the training for United, didn't they?‑‑‑Correct.

PN670

Yes. Doesn't that suggest to you that it was obviously a big enough change that they didn't want to – that they refused to perform the training?‑‑‑It doesn't suggest that, no.

PN671

It suggests that they were upset because they had to do them though, doesn't it?‑‑‑It suggests they were after more money for a particular tasks.

PN672

Do you often do extra work for no extra pay?‑‑‑I do, absolutely.

PN673

You do?‑‑‑Yes.

PN674

I assume you're probably paid on a salary and then - - -?‑‑‑Correct.

PN675

And therefore the extra work you do would probably fit within that but the refuellers are paid an hourly wage, aren't they?‑‑‑They are.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN676

Yes, so they're paid by the time that they undertake to complete tasks. So they perform extra work and they should be paid for it. But this isn't' really about the time. It's more about the context and the actual work they're being – the responsibility of the work that they're being asked to perform. It doesn't matter how long it takes. Do you think that you are allowed to direct the refuellers to do anything? Anything?‑‑‑No, it needs to be within the bounds of – it needs to be safe and it needs to be within the bounds of the - - -

PN677

But in the enterprise agreement it says that it can be, "all other duties as required from time to time." So do you think that in the context of that you can require them to - - -?‑‑‑I would never ask them to do anything if it's unsafe.

PN678

What about if you asked them to - - -?‑‑‑Fill out a form, yes.

PN679

Yes, fill out a form or get you a cup of coffee, do you think that that's any other duty, from time to time?‑‑‑I wouldn't ask them to get me a cup of coffee - - -

PN680

No, you wouldn't because - - -?‑‑‑And that's a bit of a ridiculous statement but - - -

PN681

Well, it is, because asking them to do something like that, it's not within the context of their actual job, is it?‑‑‑Well, I believe that filling out a form, which is part and parcel of refuelling an aircraft, is part of their job.

PN682

Okay, but it wasn't performed by them previously, was it?‑‑‑But it is now. That's part of the refuelling task.

PN683

Yes, so it is now but it wasn't previously, was it?‑‑‑In certain aircrafts, it was. They always had to fill out the forms. It's just, not this particular form. They've always had to fill out multiple forms. They fill out forms for maintenance tasks, they fill out forms for many parts of their role and their job, just not specific – this specific form. So they've filled out many, many forms before in their – in their role.

PN684

But forms that are issued by airlines, by the actual airlines, themselves?‑‑‑No.

PN685

Or are they forms issued by FS?‑‑‑I don't – I think it's semantic, but sure.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN686

No, well it is important because that's the clear distinction here, is that they're being issued documents that are being prepared by the airline, required by the airline, and that's the distinction here, isn't it, that they've been asked to do – and they haven't been asked to do that previously, have they?‑‑‑Besides Delta?

PN687

Delta and Hawaiian?‑‑‑And Hawaiian.

PN688

Yes, so - - -?‑‑‑And Air New Zealand, yes.

PN689

Prior to 2015 they hadn't done that for any other previous airlines, have they?‑‑‑No.

PN690

No?‑‑‑Not to my knowledge.

PN691

No. I just want to take you to – sorry, just bear with me, one second – so just to confirm these extra duties that they're doing, it doesn't make their job easier, does it? It's an additional task that they're being required to do?‑‑‑I would say that it probably does make their job easier in the sense that they no longer have to wait for third parties to come and attend to the aircraft. They can get in and do their job, do the refuelling task and then leave.

PN692

But it's not an efficiency measure, is it?‑‑‑It's efficiencies on both parts. It's efficiency for them, it's efficiency for the airlines, it's efficiency for AFS.

PN693

So it's efficient for them by taking extra time to complete calculations and fill out the forms, so it's an efficiency measure?‑‑‑Well, they now no longer have to wait for the – for the engineer to arrive at the aircraft, which means technically they're going to have a longer break in between each of the aircrafts, so - - -

PN694

But it's still them that's having to do this extra work, so it's extra work that they - - -?‑‑‑It takes a minute and a half, two minutes, at the most.

PN695

Well, a minute and a half, 30 seconds, four hours, it's still extra, isn't it? It doesn't matter how long it is, it still is?‑‑‑Sure.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN696

Yes. So if they made a mistake, and this is a pretty fast paced environment or I would think it is, and it's quick turnaround between flights and they have to get in there and get it done – if they made a mistake there could be issues with that, there could be ramifications for making a mistake, couldn't there?‑‑‑Sure. In this particular task there's – there's – they fill out the additional form and then that form is looked at by a third party provider and secondary calculations are done during the refuelling, so a mistake would be picked up fairly quickly in that – in that point in time. If there's an issue with the second issue of the form then that mistake then lies with Menzies, who's the third party provider.

PN697

And if they'd made a mistake, at the very least, there could be ramifications to their actual employment, couldn't there? There could be disciplinary measures that are introduced or they – you know, particularly if a plane is delayed?‑‑‑Not unless it was wilful.

PN698

So if they – well, I mean, to be fair, the whole respondent's evidence is that these are simple and easy calculations and that it's a simple task. If they weren't able to complete it properly then perhaps they're not able to complete their duties, so if they weren't doing it and they made mistakes, surely you would, you know, take steps to rectify that, wouldn't you?‑‑‑I'll ensure that they have appropriate training to be able to perform the tasks. If they continuously are unable to perform the task then of course we would have to look at some sort of action to make sure that they can, as part of their duties, yes.

PN699

You've got a lot of stakeholders with AFS, don't you, so you – I think it's – who have we got? Qantas are a shareholder, Caltex are a shareholder, Mobil?‑‑‑Mm-hm.

PN700

So if there's any pressure out from external forces in relation to an employee because perhaps they made a mistake and there has been a 50 minute delay to a flight and that's caused, you know, ongoing issues, surely you would feel obliged - - -?‑‑‑Everything would be investigated and - - -

PN701

Yes, it would?‑‑‑Within its merits.

PN702

But it – okay, I guess - - -

PN703

THE SENIOR DEPUTY PRESIDENT: You'll have to let Ms McGregor answer the question.

PN704

MR WEBB: Sorry, yes. The point, sorry, I'll clarify it. The point that I'm trying to make is that if a mistake is made and there are, you know – I won't say dire consequences because we're not talking about planes falling out of the sky, I'm even just talking about delays, there is the possibility that they could be disciplined for making that mistake, isn't there?‑‑‑If a delay is wilful then they're going to be disciplined.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN705

Sure?‑‑‑If a delay is just because of an error which, you know, potentially was not a hundred per cent their fault, then – every – like I said, everything is investigated and dealt with within its merits.

PN706

Yes, well, I put it to you that it wouldn't matter whether it was wilful or not. If a mistake costs money and costs time then I would think that you would look into it?‑‑‑Currently there are delays and people are not disciplined, they're not getting letters on their files. They investigate it. We look at the reasons why. The delays happen every day, unfortunately. I wish they didn't. And we investigate them and we find a way to try and stop that from happening again in the future. It's not – we don't treat everything with a big stick.

PN707

But they're at least placed under investigation and would have to go through that process?‑‑‑It's not – they're not placed under investigation. The incident is investigated.

PN708

Okay. So just turning to your statement and I think it's annexures – I'll just pull it out – just the indemnities?‑‑‑Sure.

PN709

Annexures SM5 and SM6?‑‑‑Mm-hm.

PN710

So I'll start with SM5. The questions are basically the same. But is it fair to say that if a refueller engages in something which is determined to be gross misconduct this indemnity would not cover it? So I'll just point you to it?‑‑‑Yes.

PN711

So I think in paragraph 2 of SM5, about half way down it says, "Including but not limited to injury and death of a persons, loss, damage and destruction of property arising out of any connection (indistinct) action and actions", then in brackets, "(but accepting loss or damage caused by gross negligence or wilful misconduct of the (indistinct)." So if refueller, not necessarily just wilful but it could be even to the threshold of gross negligence, then this indemnity may not cover them, or it may not cover AFS, for that matter?‑‑‑Well, yes, I wouldn't be able to answer that question.

PN712

You don't need to be a lawyer. If it's determined to be gross negligence or wilful damage then the indemnity will not cover them. I mean, it says – it's plain English, it says, "accept loss caused by gross negligence or wilful conduct", so - - -?‑‑‑I guess the description on what gross negligence or wilful misconduct is.

PN713

Yes, well regardless of what – I'm just saying that if it is determined that gross negligence - - -

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN714

THE SENIOR DEPUTY PRESIDENT: Mr Webb, you keep on actually talking over the witness' answer.

PN715

MR WEBB: Sorry.

PN716

THE SENIOR DEPUTY PRESIDENT: I'm having trouble hearing what she's saying.

PN717

MR WEBB: Sorry, Commissioner?‑‑‑I guess that would be my interpretation but I guess the – the actual incident would have to be investigated and – to determine whether that's the case.

PN718

Who would perform that investigation though, if there's a – I mean, this indemnity covers – this is from the airlines themselves, ins' it?‑‑‑Correct.

PN719

Yes, so the airline themselves would undertake the investigation, wouldn't they?‑‑‑I'm assuming so.

PN720

So it would be up to them to determine what is gross negligence or what (indistinct) but for making a claim they would make that determination, wouldn't they?‑‑‑I've never been involved in any of these sorts of situations so - - -

PN721

Okay?‑‑‑It would be an assumption to say yes.

PN722

Okay. No, that's fair enough. I just want to turn you to the enterprise agreement. Do you have a copy of it there?‑‑‑I don't.

PN723

You don't. Are you aware of the content of clause 6.4 of the agreement which has the classifications and has the dot points?‑‑‑Sure. Yes.

PN724

One of the dot points, and I'll just read it to you – if you need a copy just let me know but it says, "Completion of documentation associated with the Nitra, and there's a hyphen. It says, "Aircraft fuelling and receipt of product in storage. This would include all data processing systems, product release notes and DQA stamps and other associated quality control requirements." You're aware of this one?‑‑‑Yes.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN725

Do you know what is meant by the word, Nitra?‑‑‑To be perfectly honest, I'm not. I'm thinking it's probably a typo but it's something that's been carried over from the original enterprise agreement and - - -

PN726

For 20 years, yes.

PN727

THE SENIOR DEPUTY PRESIDENT: When I googled Nitra, aircraft refuelling, I got a lot of stuff about model aeroplanes. I'm not quite sure - - -

PN728

MR WEBB: I got nothing, your Honour.

PN729

THE SENIOR DEPUTY PRESIDENT: I'm not quite sure – I wonder if it's a type of – I assume it's a type of fuel but it may not be the type of fuel that's used any more, I'm not sure?‑‑‑I've spoken to quite a few product quality people in recent times and they suggest it would have been an additive that was used previously.

PN730

Yes.

PN731

MR WEBB: But it's fair to say that it's not clear what Nitra is though, is it?‑‑‑I'm not sure how it's relevant, but sure.

PN732

It's extremely relevant because if it's ambiguous, this whole case, but – yes, I mean, it says, "Complete documents associated with the nitro", so it talks about that they are required to complete documents in association with the nitro, but nobody can tell us what "nitro" means. You don't know what "nitro" means. You've asked people what nitro means, and nobody can determine what it means, can they, is that correct?‑‑‑That's – yes.

PN733

Do you know what DQA stamps are?‑‑‑That was the type of documentation that was performed.

PN734

Do they still perform that or?‑‑‑Not to my knowledge.

PN735

Okay, that's fine?‑‑‑That's some documentation that was performed 20 years ago.

PN736

No, that's fair enough?‑‑‑Provided by the airline.

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

PN737

I appreciate that. With the next dot point which is also relied upon by the respondent and ourselves in the application, it says, "All tasks ancillary to the receipt, storage, distribution and delivery of aviation products"?‑‑‑Mm-hm.

PN738

What other aviation products do AFS deliver, other than fuel?‑‑‑Besides jet fuel?

PN739

Yes?‑‑‑Jet A1?

PN740

Any other fuel. Is there any other fuel?‑‑‑There are other - - -

PN741

Is there anything other than fuel?‑‑‑There are other – AFS doesn't but there are others, so – I mean, there's those sorts of statements included in other EA's for other companies around this - - -

PN742

But I'm just – it says, you know, "of aviation products"?‑‑‑Mm.

PN743

I'm just trying to clarify – do you know if there's any other aviation products that AFS deliver, other than fuel?‑‑‑Not AFS, no.

PN744

Not AFS?‑‑‑We just do Jet A1.

PN745

Okay, that's fine. Yes, I have nothing further?‑‑‑Okay.

PN746

THE SENIOR DEPUTY PRESIDENT: Mr Murray? Just wait. Do you - - -

PN747

MR MURRAY: No, I don't, thanks, your Honour.

PN748

THE SENIOR DEPUTY PRESIDENT: Okay, thanks. Very well. Thank you, yes, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [12.34 PM]

PN749

MR MURRAY: I now call David Jackman.

PN750

THE ASSOCIATE: Please state your full name and address?‑‑‑David Arthur Jackman, (address supplied).

***        SUSAN MAREE MCGREGOR                                                                                                      XXN MR WEBB

<DAVID ARTHUR JACKMAN, SWORN                                        [12.36 PM]

EXAMINATION-IN-CHIEF BY MR MURRAY                             [12.36 PM]

PN751

MR MURRAY: Mr Jackman, did you for the purpose of these proceedings, make a statement dated 18 May 2016? Perhaps we can just clarify, is that intended to say, "18 May 2017"?‑‑‑It should be 2017, yes.

PN752

Yes, and do you have a copy of that statement with you?‑‑‑I do.

PN753

Is that statement true and correct in every detail?‑‑‑Yes, it is.

PN754

Is that the evidence that you give today in these proceedings, under oath?‑‑‑Yes.

PN755

I tender the statement of David Jackman.

PN756

THE SENIOR DEPUTY PRESIDENT: Yes, so Mr Jackman's statement is AFS2.

EXHIBIT #AFS2 STATEMENT OF DAVID ARTHUR JACKMAN 18/05/2017

PN757

MR MURRAY: Thank you, I've nothing further.

PN758

THE SENIOR DEPUTY PRESIDENT: Thanks. Mr Webb?

CROSS-EXAMINATION BY MR WEBB                                         [12.37 PM]

PN759

MR WEBB: Good morning, David?‑‑‑How you going?

PN760

Good, thanks. I'm just going to run you through some questions just to clarify some things in your statement?‑‑‑Yes.

PN761

Have you got a copy in front of you?‑‑‑I do.

PN762

(Indistinct)?‑‑‑I do.

***        DAVID ARTHUR JACKMAN                                                                                                       XN MR MURRAY

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN763

At paragraph 3 of your statement you said that when you commenced with AFS the enterprise agreement negotiations were at the tail end. Were you actually involved in any of the bargaining of the enterprise agreement?‑‑‑Tail end bargaining, so - - -

PN764

Actual bargaining, so log of claims and things traded off and on, or was it just merely the registration of the agreement?‑‑‑There were some final bits of detail but I was dealing with Frank Whitney who was the – one of the union delegates at the time.

PN765

Okay. The parts that you were involved with, were there any discussions regarding the classifications of - - -?‑‑‑No, there wasn't.

PN766

All the duties that they performed?‑‑‑No.

PN767

No. So you can't actually give any evidence in relation whether that was discussed during the enterprise agreement?‑‑‑No, I can't, no.

PN768

And you don't know whether this extra work that we're here today about was contemplated as part of the making of an enterprise agreement?‑‑‑No, I don't.

PN769

That's fine. I just want to ask you just to clarify some things about – some evidence has been raised today in relation to completing similar work for Hawaiian Airlines?‑‑‑Yes.

PN770

Do you know when the refuellers commenced completing forms for Hawaiian?‑‑‑I thought it was prior to the Delta.

PN771

Do you have like a – I mean, a year would be helpful, or - - -?‑‑‑I would have thought that that was perhaps the tail end of 2015.

PN772

Thank you. And are they required to sign off on those forms, do you know, and provide them to the pilot in Hawaiian or?‑‑‑The Delta – sorry, the Hawaiian - - -

PN773

Yes?‑‑‑Was – from memory, there was a little bit of – there was a bit of calculation. I think it was documenting arrival fuel, some simple calculations. Yes, I'm not – and providing the paperwork to the engineers, from memory.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN774

There were no conversions, as such, were there?‑‑‑I think there was. I think there was in the Hawaiian. I think there was some – some - - -

PN775

I put it to you, there wasn't, but that's fine if you're not sure?‑‑‑Okay. Yes, I'm not – yes.

PN776

Were there any resistance from the refuellers in taking out that extra work for Hawaiian?‑‑‑Not in the Hawaiian.

PN777

None at all?‑‑‑No, not that I can recall.

PN778

And was it engineers who previously did that work for Hawaiian?‑‑‑From memory, yes.

PN779

Now just in relation to Delta when that started?‑‑‑Yes.

PN780

Prior to you being informed that the guys would have to perform this extra level of service for Delta, were you aware of any other impending changes to the duties of refuellers?‑‑‑No. No.

PN781

So it was a bit of a shock, wasn't it?‑‑‑It was, yes.

PN782

Would you describe these extra duties as – is it additional work, so it's an additional service to be provided to Delta?‑‑‑It is, to what the – the – yes, on the paperwork side of things, yes, it was.

PN783

It's something extra than what the refuellers were required to do, prior to doing - - -?‑‑‑The - - -

PN784

It's a new task?‑‑‑A new task.

PN785

Yes. Do you think that these extra duties are a significant change?‑‑‑I don't see them as a significant change. I think – no, I don't. I don't see them as a significant change, definitely.

PN786

I'll just take you to paragraph 13 of your statement?‑‑‑Yes.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN787

You said that – do you agree that you said that, "I did say that by the guys agreeing to this, it would be a feather in your cap", and - - -

PN788

MR MURRAY: Objection, your Honour. This issue of what was said and by whom in relation to post agreement was one that my friend actually raised, in light of some comments made by your Honour that we weren't proceeding down that road.

PN789

THE SENIOR DEPUTY PRESIDENT: Yes.

PN790

MR MURRAY: It is unfair of him now to pursue that line. I - - -

PN791

THE SENIOR DEPUTY PRESIDENT: I think it's pretty clear. I mean, you raised the issue of what was said after taking the conduct that placed the negotiation of the agreement, and quite correctly I pointed out that whatever was said, and it goes really with whatever Mr Jackman said at the time, doesn't alter the meaning of the agreement.

PN792

MR WEBB: No, your Honour, but the fact is, is that Mr Jackman has been involved in the industry for a significant number of years and what he has said in these conversations goes towards showing the context within which the enterprise agreement is made. I'm not relying upon this evidence in relation to conduct, post agreement for the purpose of interpreting the agreement but rather to assist the Commission in understanding the contest, so I think – if I am allowed to continue my questioning I think you might see where I'm going. So it's a little bit different in the sense that - - -

PN793

THE SENIOR DEPUTY PRESIDENT: Yes. Obviously you'll have an opportunity to re-examine the witness.

PN794

MR MURRAY: If I may, your Honour, my friend talks about the context in which the agreement was made moments after canvassing with this witness that he was not involved in any such discussions as to the classifications and the duties performed. So he's already closed the door on his own line of questioning by that. This witness was not involved in any such negotiation and so asking him about the context of negotiations against that background is simply not going to take us anywhere, amongst other things and it can't be relevant to these proceedings and is unfair to this witness.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN795

MR WEBB: The question is actually about the significance of the change, not whether Mr Jackman agreed or didn't agree that it formed part of the enterprise agreement. The line of questioning goes to whether the change that was introduced in relation to the extra duties, whether Mr Jackman believes that there are significant change, having regard to his experience in the industry and the length of time that he's been - - -

PN796

THE SENIOR DEPUTY PRESIDENT: Hasn't he already answered that though?

PN797

MR WEBB: What – sorry, what do you mean?

PN798

MR MURRAY: He did. He did, your Honour. He said, no, definitely.

PN799

MR WEBB: He didn't think it was but then he's made some contradictory statements in his statement that say that perhaps it was a significant change.

PN800

THE SENIOR DEPUTY PRESIDENT: Okay. Look, I'll allow that line of questioning, yes.

PN801

MR WEBB: So just going back to that part of your statement, you've said that, at paragraph 13, "it would be a feather in your cap, at least to get you to the negotiating table for the next EBA." Do small changes often factor in the EA negotiations?‑‑‑I think that given that they're – I did say that. I did say that it was a feather in their cap for the next negotiations. I also went on to say that it would get them on the negotiating table. It wouldn't necessarily – you know, like, didn't give a percentage figure or anything like that. And I've actually – believe it or not, I've only – it's only photocopied one side of each of my statements so I haven't got that paragraph 13 on my particular one, so - - -

PN802

Do you have a copy of those? Thanks. Did you just want to read that paragraph 13 before I tender it?‑‑‑Yes, that's fine, yes. That's okay.

PN803

So just when you've finished, let me know?‑‑‑I agree that I did say that, yes.

PN804

Yes, and I've just asked you that do small changes often factor in enterprise agreement negotiations, so you – you've said that you didn't think it was a significant change but you've now said that – you've agreed that you've said that it would be a feather in their cap and that they could use it when participating in future - - -?‑‑‑I think it – my thoughts were that it indicated that the guys had made a small change and - - -

PN805

But you obviously – sorry - - -?‑‑‑You're right. No, that's okay. And that it would get them on the negotiating table at the next EBA.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN806

And that's because you obviously thought it was a significant enough change that it would - - -?‑‑‑No, no, no. I thought it was – I thought was a – a change.

PN807

At least a significant enough change to be raised as part of an EA negotiation?‑‑‑Yes, yes.

PN808

And you also gave them fuel card vouchers following the performance of these duties, didn't you?‑‑‑We did, yes. Yes.

PN809

It was such a small change that you thought they were required to do anyway?‑‑‑Yes, just as a goodwill type, thanks for the – thanks for the – you know, thanks for moving along and helping us – helping us move forward.

PN810

There was some pushback thought, wasn't there, from a few of them - - -?‑‑‑There was.

PN811

In relation to this? And you were under pressure to implement this quickly though, weren't you?‑‑‑It was something we needed to do, yes.

PN812

You were given short notice that this had to happen and have it agreed to, isn't that the case?‑‑‑I think we had a couple of months, yes. There was a month or two, yes.

PN813

But you had to get it over the line, didn't you?‑‑‑We did, yes.

PN814

Yes. But then to get it over the line you had to placate the refuellers, didn't you?‑‑‑I had to, sorry?

PN815

Placate the refuellers? You had to make them feel comfortable?‑‑‑Yes.

PN816

Yes, and that's why you said it would be a feather in their cap, didn't you, because you knew it was a significant change but you wanted to settle them down, so that's why you said, oh, it'll be a feather in your cap and you'll be able to deal with this later?‑‑‑I felt it was a change that would get them on the – on the – you know, exactly as I said there, that it would get them on the negotiating table at the next EBA. It would be good for them to – it would be good for them to be able to go into the next EBA, showing that they've done something to see the business move forward, I suppose.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN817

But the reality is that you've said that it was an insignificant change, and in reality an insignificant change wouldn't factor in any EA negotiations normally, would they?‑‑‑I think any change is a good change, so - - -

PN818

But would they normally form part of the EA negotiation? I mean, the point I'm getting to is that I think that it's clear that you must have thought it was such a significant change that you had to manage these guys to enable to allow it to be implemented?‑‑‑I suppose the culture has been that there hasn't been accepted of change in the past, so that was the reason why.

PN819

Okay, well just on that I'll take you to paragraph 47 of your statement?‑‑‑Yes.

PN820

So you just said you're, as an experienced refueller, so - - -?‑‑‑Yes.

PN821

You were a refueller for AFS from 1995 to 2003?‑‑‑Correct.

PN822

In those eight years, how many operational changes do you recall occurring in relation to the job that you did as a refueller?‑‑‑That was a long time ago. There was definitely some operational changes. I don't know – I can't recall exactly what they were but it's all about continuous change, isn't it, to be competitive, so I'm sure that there were some but I can't recall what they might have been at the time.

PN823

No but you do say at paragraph 49 that there haven't been any changes to the work over the past decades, but the only example you're able to provide is about this, what is it, automated scheduling system?‑‑‑Yes.

PN824

Well, that's not really anything that the refuellers have to do, is it?‑‑‑That reduces their workload and takes away a level of responsibility.

PN825

Yes.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN826

MR MURRAY: Objection. That question is actually unfair to the witness in that it puts to him a proposition which is not reflective of what his statement says. It was put to him that he has said in his statement there has not been any changes, when he statement says, "It is not true to say that there have not been any changes", and he then points to a number of changes referred to earlier in his statement as well as the change to scheduling. So it's quite improper of my friend to put to him a proposition that he said in his statement, something which is the opposite of what he said.

PN827

THE SENIOR DEPUTY PRESIDENT: Yes, okay, but it - - -

PN828

MR WEBB: Just on that, you say that the changes early in the statement, you're referring to the changes for Hawaiian, Delta and United, aren't you?‑‑‑Yes.

PN829

Yes, so what I'm asking you is that you're not able to provide me with any examples of any operational change to the '95 to 2003, can you?‑‑‑I can't recall. I can't recall. That's a long time ago so - - -

PN830

The only examples that you're able to provide of any change in your statement and today, are those that were implemented for Hawaiian and Delta and United, and this example of an automated scheduling system?‑‑‑Correct.

PN831

All of which occurred after the 2014 agreement was made?—Yes, yes.

PN832

Yes. So when you were a refueller, were you required to ever fill out paperwork for other airlines?‑‑‑No.

PN833

Were you required to complete calculations?‑‑‑There was with some panel switching, we were doing calculations, not written down calculations but they were mental calculations.

PN834

But not on a form for another airline to hand over?‑‑‑Not on a form but they were mental calculations.

PN835

During your time there did you ever taken on other duties that other people may have performed, like engineers, you know, for the – is there anything that was sort of amalgamated into the refuellers' role while you were there?‑‑‑At that time we were doing domestic gauges, we were doing the operating the gauges on domestic.

PN836

So was there a change – what I'm getting at is, was there additional work put in place for refuellers during your time as a refueller at AFS, that you can recall?‑‑‑Well, the gauges were the engineers' responsibility. We were doing the gauges on domestic, some domestic aircraft back in – back when I was refuelling.

PN837

Okay. And then you returned to AFS in about 2015?‑‑‑Yes.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN838

So it had been about 12 years since you left?‑‑‑Yes.

PN839

Had the job really changed, at all?‑‑‑It had in the sense that there was some operating gauges on the 747s that the refuellers were doing, which wasn't in my time, we weren't doing that.

PN840

Sorry, what is it that had changed?‑‑‑So the B747 gauges, so the refuellers were operating gauges on the 747 international task which wasn't - - -

PN841

Do you mean the panel input to loading up the fuel?‑‑‑The dialling up the – yes, gauges.

PN842

So an efficiency measure, really? It's assisting with the – it's making their job easier?‑‑‑Whose job easier?

PN843

The refuellers' job easier?‑‑‑It's an additional task to when I was refuelling.

PN844

What would you have done previously?‑‑‑The engineers were doing that.

PN845

Okay?‑‑‑Yes.

PN846

But apart from that, there was no real significant change in the 12 years?‑‑‑There was – there were some improvements in the business, definitely. There was, you know, like, pre-trip inspections, a lot more detail to pre-trip inspections, so operators paying more attention to pre-trip inspections. Definitely.

PN847

But in terms of the core duties of a refueller, being refuelling an plane, you know, hooking it up, putting it on – not filling out any paperwork because they weren't really, at that time when refuelling - - -?‑‑‑Yes.

PN848

It hadn't changed from that aspect from when you left in 2003 to when you returned in 2015?‑‑‑So as I say, and part of the refuelling is – has been, so the operating of the B747 gauges, and some other international gauges, they're – they were the changes.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN849

Yes. Okay. But there was no requirement in that 12 years prior – between when you left and when you returned there was no requirement to fill in forms that was introduced during that period, forms for other airlines and performing calculations and conversions and – that had never been introduced during that time period, had it?‑‑‑So there are – there are calculations in operating gauges so there – with the 747 gauges, so I go back to that and say that, yes, there were some.

PN850

Okay, mental calculations?‑‑‑Yes.

PN851

But I mean specifically filling out a form - - -?‑‑‑No.

PN852

Taking two or three minutes to fill it out?‑‑‑No. No, no.

PN853

So just back at that paragraph 49 - - -?‑‑‑Yes.

PN854

So I've just – just on that one change that you said about what you've introduced in relation to the whiteboard, it doesn't change their core principal role, does it? They still refuel planes. It's just an efficiency measure to make the job - - -?‑‑‑That's a critical part of their role, is – is marking off the flights that are allocated to them, as a refueller.

PN855

But it's not a new duty or responsibility, is it?‑‑‑It's always been a responsibility of the refuellers.

PN856

But you haven't actually introduced something extra that they had to do by implementing that - - -?‑‑‑No, I've taken something – this introduced – this was actually an improvement and made their process easier.

PN857

Yes, it made it easier?‑‑‑Yes.

PN858

All right. Would it be fair to say thought that in, I guess – when did you start, '93, was it, or '95 - - -?‑‑‑Yes.

PN859

That in the 20 years from when you started to when you returned, their core job had not changed significantly? There may have been some efficiency improvements but there was no real additional work that they were required to take on, from when you started in 1995 to when you returned to the - - -?‑‑‑Correct.

PN860

Correct, thank you. So when you said that it was a one off, that Delta was a one off, that's because it was out of the ordinary, wasn't it, to bring in something like this?‑‑‑It was out of the norm.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN861

Out of the norm?‑‑‑Yes.

PN862

Something new?‑‑‑Yes, correct.

PN863

Because things don't often change and you thought this was going to be an issue so you said, it's just a one off, guys?‑‑‑And at that stage it was, yes.

PN864

Yes, and that's because the job hasn't changed much and there hasn't been any significant increases in their duties in years, has there?‑‑‑Correct.

PN865

That's why there was such a push-back?‑‑‑Yes, correct.

PN866

Just paragraph 53 of your statement - - -?‑‑‑Yes.

PN867

In the second half of it you say, "An operator level 3 is a tarmac supervisor"?‑‑‑Correct.

PN868

"Not just an operator" – have you read operator 3, the classification they are?‑‑‑I haven't. I'm going off what was the norm, as you were speaking about before, so operator 3 has been, in the past, and has been basically a tarmac supervisor type role, so that has been just managing the guys or supervising the guys on the tarmac.

PN869

Are you aware that the wording actually says that an operator, or a grade 3 is someone who performs any work outside of a grad 1 or 2?‑‑‑Correct.

PN870

That's the actual wording?‑‑‑Yes, correct.

PN871

So it could conceivably be someone other than a tarmac supervisor, couldn't it, if they fit within that wording?‑‑‑It could. It could.

PN872

Yes?‑‑‑But if we talk about the past, the past has been that the grade 3 has been the tarmac supervisor.

PN873

Okay?‑‑‑Yes. That's been the additional task.

***        DAVID ARTHUR JACKMAN                                                                                                         XXN MR WEBB

PN874

And just, perhaps you can assist with the – so you don't have the enterprise agreement in front of you but I think you – you're aware of some of the points that we're talking about today where - - -?‑‑‑Yes.

PN875

Where you contend, or you did contend, at least, that the roles fit into that classification?‑‑‑Yes.

PN876

I just want to know that there's a dot point there about documentation in relation to the Nitra?‑‑‑Yes.

PN877

Do you know what "Nitra" means?‑‑‑No, I don't.

PN878

When you reviewed the classification did you look into what it meant or?‑‑‑I did and I couldn't find anything that sort of suited that particular wording.

PN879

No, so it's pretty unclear, isn't it, what "Nitra" means?‑‑‑Correct.

PN880

And therefore what "documents in relation to Nitra" means, isn't – doesn't it?‑‑‑Yes.

PN881

Yes. And just to clarify again, there's also a dot point in relation to distribution and storage of aviation products?‑‑‑Mm.

PN882

Is there any aviation product other than fuel that AFS deal with or provide or deliver, or store?‑‑‑So we only do the – the jet down at the airport there, so we don't do avgas. You know, there is the occasional, yes – no. No, as far as – that's just the jet basically that we do, down at Sydney Airport.

PN883

Nothing further?‑‑‑Thanks.

PN884

THE SENIOR DEPUTY PRESIDENT: Mr Murray?

RE-EXAMINATION BY MR MURRAY                                          [12.56 PM]

PN885

MR MURRAY: Yes, just a couple of questions, Mr Jackman?‑‑‑Right.

***        DAVID ARTHUR JACKMAN                                                                                                    RXN MR MURRAY

PN886

You were asked when you were a refueller, were you required to fill out paperwork provided by airlines, and your answer was no. But does the role of the refueller, or did the role of the refueller, involve paperwork more generally?‑‑‑Yes.

PN887

So filling out paperwork was part of the role when you were a refueller?‑‑‑Correct.

PN888

And the Annexure B to your statement, you were taken to the point that the employees were given a Star Card. What was the Star Card for?‑‑‑Just recognition that the guys had been doing a good job, it was in recognition, as it says there, of the undertaking the training of the Hawaiian gauges – Air New Zealand, pardon me, gauge operation, some of the scheduling grade 4 improvements, as well, so – yes.

PN889

And how much was The Star Card?‑‑‑I'm pretty sure I did look that up, a hundred dollar. I'm pretty sure it was a hundred dollars.

PN890

Now just finally, just at the end of the cross-examination and you were asked about aviation products, Jet A1 is an aviation product, isn't it?‑‑‑It is.

PN891

And avgas, if you were to use it, that'd be an aviation product?‑‑‑Correct.

PN892

So what other aviation products are there? Is that it?‑‑‑There is, on occasion, just thinking through, I think it was Prist(?), for some over wing refuelling, the Prist additive.

PN893

Okay. Thank you, I've nothing further.

PN894

THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr Jackman?‑‑‑Thank you, ta.

<THE WITNESS WITHDREW                                                          [12.58 PM]

PN895

THE SENIOR DEPUTY PRESIDENT: After lunch are we able to go to submissions?

PN896

MR MURRAY: From my part we certainly are.

PN897

MR WEBB: Yes, your Honour.

***        DAVID ARTHUR JACKMAN                                                                                                    RXN MR MURRAY

PN898

THE SENIOR DEPUTY PRESIDENT: Yes, so what time do you want to – are you happy to resume at 2.00 or do you want any longer, or?

PN899

MR WEBB: I'm fine at 2.00.

PN900

THE SENIOR DEPUTY PRESIDENT: Okay, we will adjourn until two o'clock.

LUNCHEON ADJOURNMENT                                                         [12.58 PM]

RESUMED                                                                                               [2.01 PM]

PN901

MR WEBB: Thank you, your Honour. Just in closing submissions, your Honour, just one matter I would like to address in relation to some of the assertions that were raised in the respondent's submissions. In particular there seems to be this, and I know we have already addressed this with some of the objections, but there seems to be a common theme in both the evidence and the submissions from the respondent in relation to both post agreement evidence, but also from my interpretation there's an inference here that there's some sort of common understanding between the parties in relation to the meanings of the classifications contained within clause 6.4 of the enterprise agreement.

PN902

Putting aside the manual pre-setting component of these extra duties the respondent claims at paragraphs 8, 9 and 26 of their submissions, also at paragraphs 8 and 30 of David Jackman's statement, and paragraphs 16, 20 and 32 of Susan McGregor's statement that these tasks are not new and that similar tasks had been performed by refuellers for at least the last two years without any issue.

PN903

They heavily rely upon this purported common understanding between the refuellers and the respondent with regard to these extra duties, which is inferred by paragraphs 7 and 26 of their submissions; Mr Jackman's statement at paragraphs 18, 21, 22, 39, 44 and 46. I guess in summary the inference is that the refuellers accepted to perform these duties for Delta and/or Hawaiian and did not attempt to amend these classifications in their most recent agreement or any version of the agreement for that matter in the last 20 years, and that therefore failure to address this within the EA that there is some common understanding that the definition of an Airport Operator Grade 1 or 2 was intended to allow for the extra duties to be included as part of those duties.

PN904

I won't go into the relevant authorities in relation to post agreement conduct because I think that's well established and we are all on the same page with that, but in relation to the inferences drawn by the respondent it was a common understanding, it's the applicant's submission that this inference should be disregarded by the Commission if they're interpreting the meaning of the duties in the enterprise agreement and/or also the context in which the agreement was made. This is because the common understanding principle is a limited principle and unfortunately I have only had this weekend to work on this, I can't hand up any of the relevant law, but I will just refer you to Shop Distributors and Allied Employers Association v Woolworths [2006]. Do you want the full citation for the purpose of the record?

PN905

THE SENIOR DEPUTY PRESIDENT: Actually, yes, if you have got it, thank you.

PN906

MR WEBB: It's [2006] FCA 616; [2006] 151 FCR 513.

PN907

THE SENIOR DEPUTY PRESIDENT: So 2006?

PN908

MR WEBB: Sorry, 2006. If it would assist I can email these through later.

PN909

THE SENIOR DEPUTY PRESIDENT: Yes, all right, if you could that would be good.

PN910

MR WEBB: In that case it was confirmed that reliance upon common understanding as a principle by the way in which the Commission can interpret agreements is a limited principle and should only be - it's only capable where there is a clear common understanding as to the meaning of the provisions and that the parties didn't act for some other reason like a common inadvertence for example.

PN911

The mere fact that successive agreements starting from the 1998 award through to the current agreement contain the same provisions and that there was no claim by the refuellers, or the company for that matter, that doesn't sustain an assertion that there was a common understanding. We would submit it really purports perhaps to either a common inadvertence or really the heart of our argument in that there wasn't a need to address or - - -

PN912

THE SENIOR DEPUTY PRESIDENT: I don't think it came up. I think the evidence seems to be that the kinds of activities that we are now looking at, the kind of duties didn't come up before the 2014 agreement was signed.

PN913

MR WEBB: Yes. From my reading of the respondent's submissions is that there's still this inference that by the agreement remaining the same that there's an acceptance that there is nothing wrong with them, or that they don't need to be revisited. I accept that obviously if we take the evidence that all these extra duties have only been implemented since the most recent enterprise agreement, which is our position - I will allow my friend in his submissions to clarify that if he doesn't agree - but I think from his questioning in cross-examination it's clear that he thinks that there are other jobs that they have been required to do prior to the making of this enterprise agreement which show that they have no problem or they have no issue with filling out paperwork for airlines or similar ancillary tasks.

PN914

However as I said we would rely upon the fact that just because they have accepted those or have failed to address the ambiguity or any sort of shortfall in the enterprise agreement, that no inference should be drawn that that means that there was an actual understanding between the parties. It's just by mere fact that it has not been required to be interpreted and addressed because the jobs remain the same for such a significant period of time.

PN915

So I guess in summary on that point the reliance of that on the respondent the mere fact that the union and the refuellers failed to amend the definition of operator grade 1 or 2 refuellers and the fact that the definition has remained largely consistent for 20 years that's not sufficient to establish a common understanding.

PN916

I will just reiterate, but we submit that the failure to amend that is merely a consequence of the facts that there has been no controversy regarding the duties of refuellers and the role has remained largely unchanged for a number of years, and specifically in relation to these extra duties the fact that these were not required to have been performed prior to the making of the current agreement. So at the very worst based on the evidence, or I suppose lack thereof, the failure to address the ambiguity in the classifications was a common inadvertence or just a natural consequence by both parties as a result of the actual role being performed by the refuellers. So based on those issues the applicant submits that the Commission should disregard both - any of the post agreement conduct evidence, and that goes for both parties. I am happy to concede that.

PN917

THE SENIOR DEPUTY PRESIDENT: Yes, what's good for the goose is good for the gander.

PN918

MR WEBB: Yes, exactly. I will address some of the matters that were raised in cross-examination of Mr Jackman later. So we submit that you disregard that, and also any inference of a common understanding with regard to the extra duties and whether they were intended to be included within the scope of the classification of an Airport Operator Grade 1 or 2 of the enterprise agreement.

PN919

So just that aside, just into final submissions, the applicant submits that if the Commission determines that these extra duties, and as I have said earlier at the beginning of the hearing today that we define those extra duties as not being limited to just United Airlines, but also the work that is being performed for Delta as well. That if the Commission does determine that these extra duties do not fall within the scope of that list in clause 6.4 of the enterprise agreement, then any such work must be classified as work being done by a grade 3 or 4 operator. As clause 6.6 of the enterprise agreement provides that these are employees appointed to perform work in addition to that of an Airport Operator Grade 1. So I guess - - -

PN920

THE SENIOR DEPUTY PRESIDENT: Can I just point out that the dot points - if you look at the intro, the second sentence at 6.4, it says:

PN921

Such duties will include but not be limited to.

PN922

So the mere fact that something isn't actually listed - I am not saying it is or isn't listed - but the mere fact that something is not listed in one of those dot points cannot be the basis in itself of saying that therefore there must be an Airport Operator Grade 3 or 4.

PN923

MR WEBB: No, and I accept that, your Honour.

PN924

THE SENIOR DEPUTY PRESIDENT: It's inclusive, not exclusive.

PN925

MR WEBB: It's a non-exhaustive list, yes, and I concede - - -

PN926

THE SENIOR DEPUTY PRESIDENT: So you could view them arguably as kind of essentially indicative.

PN927

MR WEBB: Yes, but the other key point though is to look into the context of how this agreement has been made, and the fact that it hasn't been amended at all for a period of over 20 years, and we would submit that the reason for that is because the job has remained static and stagnant essentially for that period of time.

PN928

THE SENIOR DEPUTY PRESIDENT: But even if that's true, and the evidence - I don't know whether there was a great contest - that largely, not completely, but largely until recent years, in fact since 2014, the job didn't seem to change very much. I mean there were one or two things that had, like the use of the panels, using the panels in 747s. There had been a few changes, but there haven't been very many. That was just my reading of the evidence generally. But that in itself doesn't mean that the agreement doesn't allow the job to change, it just didn't.

PN929

MR WEBB: No, it doesn't, but we would say that the agreement has been made in the context of that, that a job has remained the same, and I guess we can't - - -

PN930

THE SENIOR DEPUTY PRESIDENT: But there's nothing in the agreement that said - well, it doesn't appear to me there is anything in the agreement that says the job can't change.

PN931

MR WEBB: No.

PN932

THE SENIOR DEPUTY PRESIDENT: In practice the job didn't change very much over quite a long period of time it appears, and the classification description didn't change at all for quite a long period of time either, but that's not to say that you couldn't make a change in the job and still be within that classification.

PN933

MR WEBB: No. The two points I will just make about that; the first one is that if you take your interpret or your view that nothing could change and the scope for that work is flexible then what is the purpose of having a third or fourth grade operator. If you take the wording that is used to define what they do is work to perform in addition to that of Airport Operator Grade 1 what is addition if anything else could be - - -

PN934

THE SENIOR DEPUTY PRESIDENT: Sure, but it doesn't mean you can do anything. One way of looking at it is these are indicative tasks, and rather than getting too caught up with the exact wording what you do is you look at these are the kinds of things that a 1 and a 2 after they have done their - what was it 24 months - would be required to do, and if you start asking to do something if you like substantially different - I mean that's normally how classifications work to be honest. It has got to be a significant, a substantial difference. Then you move up to the next level. Unfortunately the next level isn't really defined. It doesn't really say what a 3 or a 4 does, but in practice it sounds like what a 3 normally does is they manage a number of other staff. In practice that's how it operates. No, it doesn't say that in the agreement, I appreciate that.

PN935

MR WEBB: A grade 3 is a leading hand and a grade 4 is like a shift boss.

PN936

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN937

MR WEBB: In practice.

PN938

THE SENIOR DEPUTY PRESIDENT: So they're a leading hand, so they are helping look after a number of other people.

PN939

MR WEBB: Yes.

PN940

THE SENIOR DEPUTY PRESIDENT: It doesn't say that in the agreement, I appreciate that, but all I am saying is that these dot points I don't think you should ignore, the fact that they're not exclusive.

PN941

MR WEBB: No, they are not but they are quite comprehensive.

PN942

THE SENIOR DEPUTY PRESIDENT: Not completely obviously, otherwise - - -

PN943

MR WEBB: No. That's why we are here. I will bring you back to the second point which I was going to raise was that when this agreement was made, both in the most recent version and previous versions, it couldn't have been contemplated by either party that the extra work they're being asked to perform would have been performed and would therefore fall within the scope of this classification. You use the word "significant", but I think significant - the respondent has placed more emphasis on the amount of time or the simplicity of a task, and that therefore if something is simple or it takes a short amount of time that therefore they can ask you to do it. I don't agree with that proposition, because at the end of the day what the Commission's job in this matter is, is to determine whether that task itself regardless of how simple it is or not whether it fits within the scope of that classification.

PN944

Something could be a simple - it could be totally irrelevant to what they are being asked to do, and we would say, yes, I concede that the task they are being asked to do isn't totally irrelevant, but it is something different and it is something new and they have required to undergo training for it. It was previously performed by another totally - a person with a completely different occupation, and I don't think that it's fair to say that when this agreement was made and these classifications were agreed upon it cannot be said that it was contemplated something of this nature would have been included as part of the duties of an operator grade 1.

PN945

Now that doesn't mean to say that that means that this duty is something that should be performed by an operator grade 3 or 4, but based on being a leading hand or a tarmac supervisor - but that's just the natural consequence of the wording of the enterprise agreement in that it says perform work in addition to that of an Airport Operator Grade 1 as described above.

PN946

We are not saying that every little thing that is outside of that scope means that you are an operator grade 3, it's just that that's the only claim that we can make based on the wording of the enterprise agreement.

PN947

THE SENIOR DEPUTY PRESIDENT: Yes. You have got to be one or the other.

PN948

MR WEBB: Exactly, it's either one or the other. In discussions there were other ways we could come up with - - -

PN949

THE SENIOR DEPUTY PRESIDENT: Sure. I mean if this wasn't an arbitration there would be other options, I agree, but the agreement is as it is.

PN950

MR WEBB: Exactly, so we have to deal with it in the context and the scope of that. I take your point, not to take a narrow view of the points, but to be fair that's all that we have. We don't have any evidence of surrounding circumstances really that can assist the Commission in interpreting these points in clause 6.4. All that we really can rely upon is the context in which it was made and the context of the role the refuellers perform.

PN951

THE SENIOR DEPUTY PRESIDENT: But doesn't that then bring us back to the wording? Despite having spent all morning listening to evidence the evidence doesn't really add a great deal.

PN952

MR WEBB: But the difference is that this isn't - it's not like that there has been incremental changes that have occurred a period of time.

PN953

THE SENIOR DEPUTY PRESIDENT: I think it's pretty well established, I think, I mean with some exceptions, but as a general proposition for a long while the job didn't change very much at all, and there have been changes that have come in. How significant they are I guess is a question of judgment, but there have been changes that have come in probably since the most recent iteration of the agreement was negotiated. That seems to be what the evidence seems to show I think. Certainly the definition of an Airport Operator Grade 1 hasn't changed for many years. I can't remember exactly how long it is, but this definition goes way back. The question though is, and so what? Does that mean that therefore it is inherent in the definition of an operator grade 1 that none of the changes that have come about can be encompassed by the classification. I mean it doesn't necessarily follow that that's the case. It is not enough just simply to say we have had the same classification for 20 years, the wording didn't change for 20 years, therefore it must mean that the classification - any change would take you outside the classification. With all due respect that's not a good enough argument by itself. You need to do more than that, if I can put it that way.

PN954

MR WEBB: I think that the key point is that the refuellers have not had the opportunity to I guess bargain or deal with the company in any way with respect to an enterprise agreement and the classifications contained in this enterprise agreement since these new duties have been introduced.

PN955

THE SENIOR DEPUTY PRESIDENT: But with all due respect that doesn't answer the question. If these kinds of duties are encompassed by the role of a grade 1 then there is no need to bargain about it, it's just something they can be required to do, if you accept that proposition, which you obviously don't, but I am not sure that saying we haven't had a chance to bargain about it is that circular.

PN956

MR WEBB: No. I guess that all that we say is we believe that these duties they're asked to be performed do not fit within the meaning that is currently - - -

PN957

THE SENIOR DEPUTY PRESIDENT: That is what you have got to persuade me of. So that's an invitation for you to try to do that.

PN958

MR WEBB: No, I understand. As I said we can only rely upon words that are there, and I can go through the Golden Cockerel case, and you have probably read it, the submissions are taken as read, and the submissions that we have outlined in relation to the ambiguity and why we think there is - - -

PN959

THE SENIOR DEPUTY PRESIDENT: Do you think the definition is ambiguous, are you saying I should find it's ambiguous?

PN960

MR WEBB: Yes.

PN961

THE SENIOR DEPUTY PRESIDENT: Why should I find that it's ambiguous?

PN962

MR WEBB: I will tell you. Well, because it's something that has remained the same for a period of time and has not been revisited, and we have had evidence today that witnesses from either party are not able to determine what certain words mean, and the specific provisions that are being relied upon by the respondent, particularly that point about completion of documentation, which I think is the key point - - -

PN963

THE SENIOR DEPUTY PRESIDENT: Just take that a bit - it's not the only dot point the respondent relies on, but one of them is this, I think it's the tenth point, which is completion of documentation associated with the Nitra aircraft refuelling and receipt of product in storage, et cetera. You pointed out that none of the witnesses seem to know what the word "Nitra" meant in this context, but so what. I mean if we just ignore the word "Nitra" - unless you are trying to argue that this dot point only ever had application where the aircraft refuelling was Nitra aircraft refuelling and the clause has no work to do otherwise. You are not really putting that.

PN964

MR WEBB: I think the interpretation we would take is that it was completion of documentation which they were issued by their employer to complete.

PN965

THE SENIOR DEPUTY PRESIDENT: But there is nothing in the wording that says that, is there?

PN966

MR WEBB: No, there's nothing, but as I said one of the principles in interpreting enterprise agreements does require the Commission to have regard to the context in which the agreement was made, and I think that - - -

PN967

THE SENIOR DEPUTY PRESIDENT: The trouble is I have got no - these words we all agree go back a long, long way and I haven't heard any evidence, not surprisingly I haven't heard any evidence about why those words were chosen way back. We know why they're there in the 2014 agreement because they were in the previous agreement and the agreement before that, but we don't know why, we have got no evidence one way or the other about those words.

PN968

MR WEBB: No. No, we don't. I think that's just the consequence of - - -

PN969

THE SENIOR DEPUTY PRESIDENT: Time.

PN970

MR WEBB: - - - of time, yes, essentially. I think that we have to look at - we have to examine the actual role that the refuellers were undertaking, not only at the time the agreement was made, but in all instances prior to that, and the reality is they have agreed to agree as part of their duties to complete documentation, and the context of that in relation to their role for the past 20 years prior to 2015 or whenever it was when the other airlines came in, it has been only completing documentation that AFS has issued to them, and that means also that it's only documentation that they are required to answer to AFS.

PN971

We don't deny that it was a simple task. The evidence from our witnesses have all said, they agree that it's simple in the sense it doesn't take a lot of time, but at the end of the day they are answerable to both AFS and the airlines themselves. The fact that they have had to give - the respondent had to provide evidence of indemnities from the airlines themselves. That goes to show that there is another level of some responsibility here that is being placed upon these refuellers.

PN972

THE SENIOR DEPUTY PRESIDENT: I think that was provided because you asked for it.

PN973

MR WEBB: It was also included in the evidence as well.

PN974

THE SENIOR DEPUTY PRESIDENT: No, I am sorry, I guess it was asked for earlier on in the dispute.

PN975

MR WEBB: It was, yes, but all it does I think is it goes to show that there is another level of responsibility that has been placed upon these refuellers. There is something else that could go wrong, and I accept that in any role - - -

PN976

THE SENIOR DEPUTY PRESIDENT: You could expect that of anything though, couldn't you. Everything we do obviously we are expected to do properly. Yes, this is something they weren't asked to do before, obviously they're expected to do it properly. I understand obviously if you like psychologically some employees are a bit nervous about that, rightly or wrongly to be honest, but I am not sure why that changes the meaning of the clause.

PN977

MR WEBB: I don't think it changes the meaning, I think it just - - -

PN978

THE SENIOR DEPUTY PRESIDENT: No, I think it does, and that's what I have got to decide. We know what the duties are, I have had it very well expressed. I now have a very clear understanding of what it is they are having to do that they didn't do before, and the question is, well here's a clause that describes the duties of an operator grade 1, does it fall within that. That's the issue, isn't it, for me to decide?

PN979

MR WEBB: It is. I guess you may not accept it, but I believe that the strongest argument we can put forward in relation to that due to the lack of evidence in relation to negotiating the agreement is only the context within which it has been made, and as I said - with enterprise agreements it's not a contract, they're not - - -

PN980

THE SENIOR DEPUTY PRESIDENT: But we have got no context - we know sort of some of the history leading up to the 2014 agreement, we don't know anything about the history about when these words were first struck. We don't have anything, and it is so long ago, no one who was involved is here.

PN981

MR WEBB: No, but I think it can be inferred from the fact that the previous versions have not been changed, but there has been no desire or at least any will of any party to amend the classifications.

PN982

THE SENIOR DEPUTY PRESIDENT: Because it wasn't necessary.

PN983

MR WEBB: Because it wasn't necessary, because they knew what it is that they were doing, they agreed to it, there was no need to revisit it. I can assure you it probably will occur in the next negotiations.

PN984

THE SENIOR DEPUTY PRESIDENT: At least let's take out the word "Nitra".

PN985

MR WEBB: But I think that it's still important that when this agreement was made and agreed to that they were agreeing to a job that they had been performing and had remained largely the same for a number of years.

PN986

THE SENIOR DEPUTY PRESIDENT: All right. I understand your argument.

PN987

MR WEBB: I will refer you to the Golden Cockerel case. I think in my submissions at paragraph 15 I list the ten principles that the Full Bench described. I have already made submissions in my written submissions in relation to the ambiguity and that's fine, I don't need to reiterate those again. It's our submission that the terms are ambiguous and the clause itself is ambiguous. I guess what we can say about that is that it is ambiguous because it is quite broad and it is almost non-exhaustive. We would submit that that in itself can cause ambiguity to arise, because as I said when I was cross-examining Ms McGregor where does it end; where does it end and what duties or what tasks or what roles can you ask employees or the refuellers to perform. If you look at some of the - - -

PN988

THE SENIOR DEPUTY PRESIDENT: I think you answered that pretty much at the time. That's not uncommon. Lots of job definitions have a thing and all other duties is directed, but no one really seriously thinks that means you can be asked to do anything. Clearly what it would normally be interpreted as is similar things.

PN989

MR WEBB: But most classifications as well also have corresponding classifications which provide a list of each other duties. The problem we have with this enterprise agreement is that the very next level just simply says to perform work in addition to that of grade 1. So what is in addition to that of grade 1 if it's not something that may fall beyond that scope. I think it's a bit of a long bow to draw to say that this is such a broad list of duties that it could include things such as the extra duties, but then we have - perhaps the grade 3 is ambiguous as well, but it doesn't add anything. Normally when you interpret these enterprise agreements you can distinguish between the different classifications.

PN990

THE SENIOR DEPUTY PRESIDENT: But that doesn't alter the point I was making which is normally you would look for, well is the task something that's closely associated or similar to the tasks that are listed. So in other words you can view those dot points as essentially indicative tasks. These are the kinds of things that you would expect an operator grade 1 to do, and things that are similar, maybe a similar level of difficulty involved, similar level of the skill. They are not substantially different, they're the same type of thing. They can be asked to do that as well. If it's something that doesn't fall within that, something substantially different like managing people or providing supervisory, then you move up to another level. That's one way of reading it, I would suggest.

PN991

So the question then becomes are these "new tasks" or "new task" essentially significantly - I mean it's a judgment call, I appreciate, but that's not uncommon again with these types of matters. Is it a significantly different activity than the one specifically referred to in the dot points, even if it's not literally referred to, because it doesn't have to be because this is not an exhaustive list.

PN992

MR WEBB: No, but as I said I will stick with the argument that context is important. Our submissions and the evidence shows that it is a significant enough change from the current duties that they perform, and that context within which this is made - - -

PN993

THE SENIOR DEPUTY PRESIDENT: Can you just expand on that.

PN994

MR WEBB: Why is it significant?

PN995

THE SENIOR DEPUTY PRESIDENT: Why is it a significant change?

PN996

MR WEBB: Because as the evidence provided by us the operators believe that there's a larger responsibility placed upon them, and I think it's accepted that there is some - any new task with it brings a greater or higher responsibility. They are now being issued paperwork which is provided by and issued by the airlines. They're required to sign off on it with their name. In fact I think even the United ones they have to certify that - I will just find that actually, I think it's in Ms McGregor's statement, and maybe the Delta one. It's annexure SM3 of Ms McGregor's statement. This is the United form. They all have to sign off saying essentially agreeing that it has been properly fuelled, discrepancies reported, indicators and lights tested, visual adaptor checked and fuel panel door closed.

PN997

These might be tasks that they already perform, but the fact is that they're now answerable to the airline in saying, "Did you check all these things and you've signed off, and you've agreed to do this", and it's - - -

PN998

THE SENIOR DEPUTY PRESIDENT: But isn't that in fact almost, that's the quality management system, isn't it?

PN999

MR WEBB: Well, it may be but it's - - -

PN1000

THE SENIOR DEPUTY PRESIDENT: But, I mean, they have specifically actually, if you go back, you know, and maybe reflect that, you know, the TQM was big in the days when this first came up. I mean, you know, that sounds absolutely the kind of QA. In other words, you know, having someone – I mean, obviously, because I've come across this in other disputes in the airline industry of recent times.

PN1001

Certifying that you've done your job properly is obviously a quality check, and it's simply providing a quality check, if you like, that you've done what you're supposed to do properly, or that you've done it. You know, that seems to be sort of almost standard now in the airline industry.

PN1002

MR WEBB: Well, it's not, in the sense of filling out a form and giving it to the airline. I mean, it's only currently in place for United, and I will just check the other ones as well. I mean, yes, they may have been required to perform these tasks but they're essentially signing off on and agreeing that they've performed these tasks. Look, whether they sign it or not, maybe they would still be held liable if something went wrong.

PN1003

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1004

MR WEBB: But the fact is that it purports at least a higher responsibility because they're essentially signing off an agreement that they've done it.

PN1005

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1006

MR WEBB: Now, I mean, this is a – I mean, you know, I don't know whether – I don't know whether it actually, in itself, brings any higher responsibility but it at least gives the perception that it does.

PN1007

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1008

MR WEBB: I would submit.

PN1009

THE SENIOR DEPUTY PRESIDENT: I'm sure that's true. I'm sure it makes them feel – and, in fact, it's designed, I would imagine, to make them feel more responsible for what they're doing. It's the point of it.

PN1010

MR WEBB: Probably to ensure that they actually perform the tasks. Just to continue with answering your question about why it's significant, I think it's also because – the first point is that it is now something that is issued by another airline, and they're answerable to another airline. The other important factor is - - -

PN1011

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that there's any reason that they are – even though that they personally are answerable to the other airline. I mean, obviously the airline has a contract with the respondent, and if the respondent's employees don't do their job properly, presumably the comeback would be against the respondent.

PN1012

MR WEBB: Well, if you were a smart litigator, you would, but it doesn't mean - - -

PN1013

THE SENIOR DEPUTY PRESIDENT: But I mean - - -

PN1014

MR WEBB: There may not be - - -

PN1015

THE SENIOR DEPUTY PRESIDENT: There's no relationship, in a sense, really, you know, I mean, you're not making the employee, I wouldn't think, you're not making your members answerable to the airlines, directly.

PN1016

MR WEBB: Well, they're filling out something that the airline requires.

PN1017

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1018

MR WEBB: It has been provided specifically to them to perform it.

PN1019

THE SENIOR DEPUTY PRESIDENT: Sure.

PN1020

MR WEBB: Was the training issued by the airline as well? Yes. So the airline has issued the training as well.

PN1021

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN1022

MR MURRAY: It's the Train our Trainer.

PN1023

MR WEBB: Sorry?

PN1024

MR MURRAY: I think it's the Train our Trainer.

PN1025

MR WEBB: Yes.

PN1026

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1027

MR WEBB: It's something that the airline - - -

PN1028

THE SENIOR DEPUTY PRESIDENT: It might feel like that but I doubt that they're actually now answerable to the airline.

PN1029

MR WEBB: Okay. Regardless of whether they're answerable or not, the fact that why we would say that it is a significant change, is that change.

PN1030

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1031

MR WEBB: It's something that a third party is requiring them to undertake at their direction, and under their own training as well. In addition to that we have to also look who performed there job previously. There's been some discussion outside of this hearing in relation to who did or didn't perform a task, but I think it's clear from the evidence that an engineer was engaged by the airline to perform this task. Whether it was the only task they did or not, I'm sure it wasn't.

PN1032

THE SENIOR DEPUTY PRESIDENT: No. Yes.

PN1033

MR WEBB: But from my understanding, it was something that they were still required to do, and they underwent significant training for their whole job. It was still something that an engineer was required to perform. Clearly the airlines, at whatever point, felt that that was, you know, the appropriate person to undertake this task, and, I mean, it can only be inferred that to reduce costs they're now passing this onto refuellers.

PN1034

Again, I think that it's a significant enough change to say that someone who completed this job from a different – I mean, yes, they both still work with aeroplanes but they're two very different roles, a refueller and an engineer. So that's another point as to why it's a significant change. Why else would we say it's a significant change? Well, the pivotal point is really these conversions and calculations. I mean, yes, it may be that they're simple calculations. It may be that they're provided with tools to perform these calculations, but the fact is that they've not been required to undertake anything of this level.

PN1035

I mean, I don't care if it's grade 3 mathematics, but the fact is that they haven't been required to perform tasks such as this previously. As my friend said in some of his examination, just as there's nothing there in the EA to say that the documents of course are not for other aircrafts, there's also nothing contained in here that relates to calculations or conversions.

PN1036

That's quite interesting, when you compare that to when you look at those IATA levels of service, which whilst it is a different document in relation to the EA, it does specifically list certain tasks, and one of those tasks, it specifically says conversions and calculations. That's the specific task that they're being asked to perform. There's nothing in the Enterprise Agreement – well, I would submit there's nothing in that clause 6.4, which I can see, that would require these refuellers to perform these calculations and/or conversions. The only one may be:

PN1037

All tasks ancillary.

PN1038

But, I mean, there's a question about what is meant by "aviation products". I mean, we don't know why it didn't just say fuel, if it's not meant to be fuel, because fuel is referred to previously. Perhaps:

PN1039

All other duties required from time to time,

PN1040

which I think is the second-last dot point, but that goes on to say:

PN1041

including participation in safety and maintenance tasks.

PN1042

Well, it's not limited to it or I think that's clear there's a limitation there, perhaps for those duties to either be at least reasonable, foreseeable changes, and possibly ones that relate only in relation to safety and maintenance tasks. However, I don't think that the context of this clause, even when it's read on a strict basis of each dot point, or looking at it as a whole, as an indicative list of the tasks performed by the refuellers, I don't think it's fair to say that there's a requirement to perform calculations, whether it's in your head or o on a calculator, and write these out on a form and do conversions.

PN1043

I don't think that that requirement is covered by this clause, and nor was it contemplated to be included by the parties at the time that the agreement was made. So, I guess, in summarising your question, the reason why it's a significant change, it's who performed the task beforehand. I forgot what my first point was, your Honour. That - - -

PN1044

THE SENIOR DEPUTY PRESIDENT: The responsibility involved.

PN1045

MR WEBB: Yes, the responsibility involved. Dealing with paperwork issued by another airline. Finally, by the fact that they're now required to do an extra level of, I guess, arithmetic, which regardless of its simplicity is still something which is - I mean, it's not refuelling a plane. At the end of the day, their job is to refuel the plane and do some tasks in relation to that.

PN1046

But to perform conversions and calculations and addition and subtractions, multiplication, division, that's not something that they were required to do previously, nor would I think is a requirement for them to perform when they took on the job either. So does that give you some answers to deal with?

PN1047

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks.

PN1048

MR WEBB: Just to sort of finish up in relation to those points 7 and 8 in the Golden Cockerel decision, which as I said were at paragraph 15, and I do think this is still important because, you know, yes, as you said, there's no evidence in relation to what was in the mind of the parties when the agreement was made, but I still think that the context is important. Point 7 says that:

PN1049

The resolution of a dispute over a construction of an agreement, will turn on the language of the agreement, understood having regard to its context and purpose.

PN1050

Then 8 goes on to give a list of where context might appear from. It says:

PN1051

The agreement viewed as a whole, the disputed provisions, the place and arrangement, and the legislative context under which the agreement was made.

PN1052

We would submit that when looking at the context of the agreement, it's not necessarily – it says, and the point is, that it might appear. So it's not exhaustive, but I think that it's important for the Commission to consider the context in which the agreement was made, and the context in which it was made for a role that's barely changed over a number of years.

PN1053

I don't feel there's evidence given, and I can be objected if it wasn't, but my understanding was that refuellers had been previously told not to do any paperwork for other airlines. They're not to touch anything, you know, like, "Don't touch it. You can't do that." They've never had to do it before, and it can't have been contemplated at the time that the agreement was made, that this was something that was intended to have been performed by the refuellers.

PN1054

I'm just repeating myself really because you've asked the question that I was going to hopefully answer later on. Look, and I think it's clear from the evidence, both by ours and also Mr Jackman, himself, basically admitted that the job hasn't changed significantly in a number of years, and that, you know, that this change was a one-off because it was a significant enough change that it caused disruption amongst the workforce.

PN1055

He had to say to them that it was a one-off, and that it would be a feather in their cap in negotiations, because it was a significant enough change that it upset them, and it was a significant enough change that Mr Jackman foresaw that it was going to be a problem, so he had to deal with it in whichever way he saw fit in his role as operations manager.

PN1056

In the context of when the agreement was made, you know, as I said, it's a role that hasn't changed for a number of years, and that's how it was made, and what was agreed to by the parties. Therefore, the requirement of refuellers to perform these extra tasks, it couldn't have been contemplated by either party at the time that the EA was made.

PN1057

These catch-all clauses, like, that it's not exhaustive, the all other duties clause, the all tasks ancillary clause, we would submit that they can't be interpreted to relate to any future possible task that may arise in the future. It can only be interpreted within the context of the role of refuellers as at the time the agreement was made, not some future amended role or duties, and in this particular case, when the job was performed by someone else in a different occupation.

PN1058

If your Honour takes the view that such a broad interpretation was accepted, then, as I've said, I've already made this point, but conceivably refuellers could be required to do a number of duties, even though those which a grade 3 or grade 4 operator perform, at the lower wage rate of a grade 1 or grade 2 operator.

PN1059

Whilst it's accepted that the classifications have been drafted to allow flexibility, we submit that only reasonable and foreseeable increased duties or extra tasks would fall within the definition of the duties of grade 1 and grade 2. We would submit that these new tasks are not reasonable, nor were they foreseeable at the time that the agreement was made.

PN1060

With all this in mind, you know, we would submit that the correct interpretation of the Enterprise Agreement in clause 6.4 of the duties, would be those as set out in paragraphs 20 to 30 of our outline of submissions, which we've already filed. I'm not going to go through those again. I'm happy for those to be considered by your Honour when making this decision.

PN1061

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1062

MR WEBB: I'll just make a further point. I think I've already addressed this but the respondent has placed a lot of focus and emphasis on the simplicity of the extra duties. We would just submit that it doesn't matter how simple or how little time those tasks take. All that is matter is whether the tasks, themselves, fit within the duties as contemplated by clause 6.4 of the Enterprise Agreement .

PN1063

Yes, they may be capable to do the task. Yes, it may be something that they've agreed to do in good faith, but we would submit that it falls outside of the scope and, therefore, neither are they required to do it under the current classification, but if they are required to do it, they should be paid for that work accordingly.

PN1064

The fact is that the refuellers are being required to do something which we submit are outside the duties as set out in clause 6.4 of the Enterprise Agreement , based on the only possible interpretation of the agreement, when you take into account the entire context of the EA, and the roles when it was made.

PN1065

Just to conclude on that in relation to the context, this was an EA that was made prior to the introduction of these extra duties for both or all of Hawaiian Delta and United. The agreement was made before these were introduced. It has an EA in which the classifications have remained largely unchanged for almost 20 years with the previous versions. It's an EA and a role in which the jobs and duties, themselves, have remained largely unchanged for almost 20 years.

PN1066

Therefore, when considering the context of when the agreement was made, we would say that it would be fanciful to suggest that the extra duties were intended to form part of the duties performed by refuellers within the meaning of clause 6.4 of the Enterprise Agreement.

PN1067

So in conclusion, based on these submissions, and the submissions already read, and the evidence today, we would submit that the Commission must conclude that the extra duties do not fall within the duties contemplated by the classifications of airport operators grade 1 or 2, and that all work performed by AFS employees, that included these duties, including similar duties for Delta or other airlines, at any point in since the Enterprise Agreement has been made, should be classified as work performed by a grade 3 operator.

PN1068

THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr Webb. Mr Murray.

PN1069

MR MURRAY: Thank you, your Honour. First, as a formality, I adopt the outline of submissions filed in these proceedings for the respondent. I would just like to go through that by way of overview, and invite you, your Honour, to ask questions in much the same way as you did with my friend.

PN1070

The situation we say is quite a straightforward and simple one. I might just note that the applicant has rather modified its case since this was started. Both in their submissions and also today there's been some movement as to what, in fact, is claimed. The applicant has tailored their cloth according to what they think they can persuade you on, I think it's fair to say, your Honour.

PN1071

First of all, the applicant, I think, has abandoned any claim that the pre-setting was somehow a new task, and clearly that was the case when the manual pre-setting of the final fuel load is something that has been done since about the year 2000, long before the current enterprise agreement was made.

PN1072

We now focus on the other aspect of what they initially claimed, and that's the fuel service form. What we say about that is that the completion of the form and the conversion of the units of measurement is quite squarely within the classification structure. That's what we've come down to. We've got a very straightforward question before you as to whether that particular task, the completion of fuel service forms, a variety of paperwork, and the calculation of conversions, is somehow outside the classification structure for the operator.

PN1073

You've heard evidence and argument about all of that, and of course you've pointed out to my friend, most helpfully, that the airport operator grade 1 definition lists a number of tasks, indicative tasks. Such duties will include but not be limited to – and we say that the task of filling in paperwork, and the task of in the course of filling in that paperwork carrying out some calculations, are quite squarely within that list.

PN1074

Quite squarely within, in particular, the dot point starting "Completion of documentation". The definition doesn't need to be stretched. It's not ambiguous, "Completion of documentation", that's what we're talking about.

PN1075

THE SENIOR DEPUTY PRESIDENT: I mean, the only thing that – well, not the only thing but the most obvious thing we could argue creates some ambiguity is that it says, "associated with the Nitra aircraft fuelling.

PN1076

MR MURRAY: Yes.

PN1077

THE SENIOR DEPUTY PRESIDENT: No witness was able to tell us what the Nitra - - -

PN1078

MR MURRAY: No one was definitive about that. Ms McGregor said that she felt it might be a typographical error. It might be intended to mean inter-aircraft refuelling, which would be consistent with the inter-aircraft refuelling or inter-plane refuelling in the IATA guidelines. But, yes, no definitive evidence as to what that particular word means, or whether it is a typo, has been presented.

PN1079

However, that being the case, that word, whether the word has any work to do, with or without it – and the wording is quite clear there, "completion of documentation". completion of documentation – and the sentence goes on to talk about the types of documentation. It gives examples. Data processing, systems product release notes, DQA stamps. DQA being a former authority in this area. And other associated quality control requirements.

PN1080

That, we say, covers off on documentation of this nature. What we're talking about are simple one-page forms where you fill in some numbers. This isn't high level work at all. My friend has taken me to task for saying this but it's very simple, it doesn't take very long to do. All of the employees are capable of doing it. They've all had the training. They have given evidence that they don't find it difficult to do. It's something that adds maybe a minute or so.

PN1081

Maybe a couple of times a day, and it's no stretch – we're not artificially stretching the boundaries of a bullet point for completion of documentation to say, well, completion of this documentation. There's nothing in the provision that talks about only company issued documentation. It's documentation, and the documentation that's being discussed is simply a species of documentation associated with the refuelling task.

PN1082

It's also a task ancillary to the distribution and delivery of the aviation products, the jet A1 fuel, which is an aviation product, as witnesses for the respondent have pointed out. It's ancillary to the delivery of that fuel into the aircraft with the employees carrying out these very simple tasks of recording how much. How much is required. How much is dispensed. That's the nature of the paperwork we're talking about. There's no more complexity than that to the task.

PN1083

So we say that very clearly this is something that is within the definition under 6.4. The definition is not one that's intended to set in aspic forever practices of 20 years ago. It's one which is designed to give voice to the sorts of tasks which employees do, by way of examples, including but not limited to these ones.

PN1084

We say that if you look at them in that light, recognising them by the company they keep, as it were, the noscitur a sociis, which is a principle I haven't had to tell a member of this Commission about for quite some time, but these are tasks which are clearly within that definition. We're not stretching things by saying that the employees should be called upon to do something outside the very clear boundaries of these provisions.

PN1085

We're not talking about the employees being called upon to make coffee for the pilot, I think was the example my friend used. We're talking about documentation. Now, whether that documentation is in one form or another form, that's all it is. Simple documents where the employee fills in the numbers. They read the gauge, they write the numbers. They use their pocket calculator to divide by 6.7, and they write in the resulting number. That's really what we're talking about.

PN1086

It's completely artificial to say that that somehow is outside the scope of completion of documentation and performance of tasks ancillary. The signing off, as you've said - you pointed this out to my friend – the signing off documents is very much par for the course now in terms of traceability, not only in aircraft but in a number of industries. That's all it is. It's a quality assurance step for the employees to be traced to the work that they do, and no more than that.

PN1087

All of these assertions about how somehow this increases the level of responsibility, well, that really is only in the mind of the employees. The level of responsibility is the same. They are required to do their work conscientiously, in accordance with the procedures given to them. That responsibility hasn't changed. My friend also asserted that somehow when we provided them with the indemnities, that elevated the issue of responsibility in some way.

PN1088

But as you've quite properly pointed out, your Honour, well, we gave them those because they asked for them. They raised this fear that somehow the employees might lose their houses, be held to account if there was some incident, and in the way of response the company provided not only the indemnities but also the evidence of the control steps that follow what the employees do. There is no basis for them to feel that somehow they are more responsible than they ever were.

PN1089

There are control steps after they've completed their work filling in the forms. Control steps involving the dispatch from the aircraft captain. Those have always been the case. That hasn't changed. The mere fact that the employees are now doing a task which engineers formerly did, that also doesn't change anything. This is not something that you need an engineering qualification to do.

PN1090

All of the employees who gave evidence, agreed it's a simple task; and it is. It's simple arithmetic. You punch the numbers into a calculator and you press the equals button, and you write the result down. They've all agreed that it's simple. It didn't take very much in the way of training for them to understand. They have had no difficulty in doing the work.

PN1091

As well as that, in large part, these tasks aren't new. Conclusion of paperwork, if we take it in a broader sense, is something that employees have been doing for quite some time. Mr Jackman gave evidence that when he was delivering fuel as an aircraft refueller - and this is the better part of 20 years ago, paperwork was something that employees did.

PN1092

It continues to be, and has continued to be part of their role to do paperwork, for a range of activities. Maintenance activities and record keeping and so forth. Ms McGregor also alluded to the fact that there's paperwork to be done. All that this argument is about is another piece of paperwork. Not a new - - -

PN1093

THE SENIOR DEPUTY PRESIDENT: The distinction the employees have drawn is that it's now paperwork that's produced by a third party, by the airline, rather than by their own employer.

PN1094

MR MURRAY: Well, that doesn't change anything. As the point you made, your Honour, they are answerable to their employer to do their work conscientiously. They are not answerable to the airlines. They're answerable to their employer. Now, their employer may well in turn be answerable but they always have been, for work being performed in accordance with the requirements of their customer.

PN1095

But the mere fact that the paperwork is printed off on someone else's letterhead, doesn't change anything. The mere fact that the paperwork looks different from paperwork previously used, in its layout, that doesn't change anything. It's paperwork, and the paperwork, itself, is very, very simple. I showed this to the various witnesses for the applicant. They all understand it. It's documentation where you simply fill in the blanks. There's no level of complexity about that.

PN1096

You have a blank to fill in for the amount of fuel in the aircraft. Then there's the desired load, so you subtract the amount in the aircraft from the desired load and you write in the result. Simple subtraction. And then you convert that by way of division from pounds to gallons. There is nothing complicated about that paperwork, and the mere fact that someone else produced it's neither here nor there in my submission.

PN1097

It's a simple task which is very much on all fours with the provision in the enterprise agreement that the completion of documentation. The completion of documentation. There's nothing there that restricts that documentation to a particular source or particularly to the employer that it can only be documentation produced by the employer. It's documentation. And this documentation is very much congruent with the role of the refueller. It's a very simple form of documentation that records how much fuel that you're required to put on this aircraft, how much fuel did you put on this aircraft.

PN1098

So we say that these tasks aren't particularly new. Completion of paperwork is not new. The only aspect that's new is using the pocket calculator to punch in a couple of numbers to convert. The employees were already doing the fuel uplift. In other words subtract the fuel required from the fuel actually on the aircraft. That was already being done.

PN1099

All that changed with these American operators was the conversion from US measures to metric measures which really is - all that we come down to - the only change being made are two arithmetical operations, two divisions, using a pocket calculator that take about a minute or a minute and a half - even with checking - and the witnesses for the applicant confirmed that.

PN1100

These are simple straightforward tasks. There is nothing challenging about them. There's also no relationship between the classification structure and the IR to service levels but it's worth just pointing out that even if were to have reference to the IR at the service levels the conversion task is actually part of level two.

PN1101

If I could take you to annexure SM1 of Ms McGregor's statement. Level two - routine fuelling. Item (a)(4) - complete kilos to pounds, or litres to gallons, conversion then required. This is level two stuff. This isn't level three. The argument we're having is not about a level three service. It's actually about level two activity or part of level two activity.

PN1102

There's no additional responsibility. There's no additional liability. There's no complexity about this. It's part of the definition of the role of a grade one operator. That's what it comes down to. We say that - very squarely - there was nothing to bargain about. There was nothing to discuss or negotiate. No need to, because all of these tasks were part of what the operators could be expected to do. It's fanciful for my friend to say that we should somehow have invited bargaining about this in circumstances where that's the case. We're not bargaining about a change. All we're doing is having people do things that are already within the scope of their role.

PN1103

We also say and I have made this comment in relation to backdating and I will make it again now. My friends tried to have it both ways there. Tried to have it on the one hand that somehow the united work which is how he initially defined this "extra duties". He defined it initially by way - very squarely - of the united duties. Now he's throwing the net wider to cover - - -

PN1104

THE SENIOR DEPUTY PRESIDENT: Well, I think he's saying that the employees have been asked to do similar things, more particularly with Delta.

PN1105

MR MURRAY: Yes.

PN1106

THE SENIOR DEPUTY PRESIDENT: Since the 2014 agreement was approved and that they didn't make a big fuss about it at the time if you like. I mean there was a bit of a concern but they lived with it, but not on the basis they agreed it was covered by the classification. And then when they realised, if you like, "it wasn't going to be a one-off".

PN1107

MR MURRAY: Yes.

PN1108

THE SENIOR DEPUTY PRESIDENT: That's when, if you like, the alarm bells rang from their point of view. So I'm not sure that - I can't see there's any contradiction I have to say.

PN1109

MR MURRAY: Well, in his submissions he made the position very clear at paragraph five of his outline of submissions that it was about the extra service requirements for United. And then of course it was pointed out, in my submissions, that that left him in rather a Catch-22 and so he's tailored his cloth according to that fact being pointed out. And it wasn't just Delta. It was also Hawaiian.

PN1110

THE SENIOR DEPUTY PRESIDENT: Right.

PN1111

MR MURRAY: And in respect of - - -

PN1112

THE SENIOR DEPUTY PRESIDENT: But all that - but you do agree don't you that all the evidence is about what's happened since 2014. These changes have come in since the enterprise agreement was completed.

PN1113

MR MURRAY: Not quite. Much of it has.

PN1114

THE SENIOR DEPUTY PRESIDENT: Right.

PN1115

MR MURRAY: The conversion task from US to metric and vice versa that is certainly something which has come in since the agreement was made. The completion of paperwork as a general proposition - - -

PN1116

THE SENIOR DEPUTY PRESIDENT: No. Okay.

PN1117

MR MURRAY: - - - is something much older.

PN1118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1119

MR MURRAY: The operation of the digital panel is something which is much older.

PN1120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1121

MR MURRAY: But, yes, there is left this residue of that conversion calculation. That's what we're narrowed down to because that's all that's left as post-2014 or post the agreement being made. And that being the case, we have narrowed right down now to essentially a trivial change in the nature of the task, one which doesn't take the activity outside of itself now, because now we're looking at it in isolation. That's the way the question has been framed. That doesn't take it outside the definition under 6.4 of the enterprise agreement. That's necessarily ancillary to the performance of the delivery. It's necessarily part of the documentation. It's also such a narrow and small issue as one which doesn't attract any level of significance.

PN1122

You asked my friend about whether it's significant and how it's significant. Well, we say it's not. When you have employees being called upon to do something which they themselves agreed is easy and simple and which they themselves have agreed takes about a minute or a minute and a half, that cannot be significant. It's not something which is new in the sense that they have done calculations before, just not conversion calculations. They certainly have done paperwork before. They have completed forms before in a wider range of contexts. There is no significant change inherent in the performance of the work by applying their existing paperwork and their existing performance of calculations to this particular application

PN1123

Finally, in closing, if, Your Honour, you were minded to say that somehow this is outside the classification structure and we say that it's not, but if you were, this question of backdating, there is two things I'd like to say about that. First of all, there is the issue of whether this would take it into a situation where the employee would become grade 3 or whether it would only be a higher duties position for that 90 seconds roughly once or twice a day.

PN1124

That really highlights the level to which we're getting down to trivialities, your Honour, but I do make that point because that's all it is and nothing else about the job has changed but for that short amount of time you spend punching out this very simple calculation. The other thing is that the backdating, well, I have made the point in the submissions and I will make it again. If we're talking about somehow this being tied to the work being done for United, well, it's scarcely started. Backdating ought not be available for that and the union and the employers ought not also be given the benefit of sitting on their hands. They have allowed this to be.

PN1125

Now, those aren't a large part of the argument because, as I say, the centre of the argument, we say, is this. We have employees who have been doing paperwork for years. They have been doing the panel operation for years. All we're getting them to do is a new form of calculation which they have been doing calculations before. This is a very trivial calculation, quite frankly, and I don't say that lightly. It really is a very trivial simple calculation that they do maybe once or twice a day. That should not see them reclassified. It doesn't take them outside the scope of clause 6.4 of the enterprise agreement. It very much is an operator one's work.

PN1126

We don't have a situation and should not have a situation where that is seen as setting in stone practices of 20 years ago without any room for any movement. There has been movement. There have been some modifications to the way work has been done over the last 20 years. There have been changes like the panel operation. There have been changes like the scheduling which Mr Jackman talked about. We are not talking about a situation where there cannot be any movement.

PN1127

At the same time, the respondent is not arguing for a wholesale change in the nature of the work. It really is a very small tweak to the way work is done. It is very much congruent with the definition in 6.4. It's documentation. That's all they are being asked to do. Thank you, your Honour.

PN1128

THE SENIOR DEPUTY PRESIDENT: Thank you. Did you want to say anything in response, Mr Webb?

PN1129

MR WEBB: The only thing I will quickly address is just that last comment by my friend in relation to a higher duties allowance for 90 seconds per shift. I will just draw your attention - - -

PN1130

THE SENIOR DEPUTY PRESIDENT: Whatever I decide, I don't think that's what I would decide. I mean, I promise you I wouldn't do that to anyone.

PN1131

MR WEBB: No, well, apart from that then nothing further.

PN1132

THE SENIOR DEPUTY PRESIDENT: It won't surprise you to learn that I am going to reserve my decision. Thank you very much.

ADJOURNED INDEFINITELY                                                           [3.04 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL KORFIAS, SWORN........................................................................... PN13

EXAMINATION-IN-CHIEF BY MR WEBB...................................................... PN13

EXHIBIT #TWU1 STATEMENT OF MICHAEL KORFIAS.......................... PN24

CROSS-EXAMINATION BY MR MURRAY.................................................... PN64

RE-EXAMINATION BY MR WEBB................................................................ PN197

THE WITNESS WITHDREW............................................................................ PN211

SHANE MICHAEL BRAZ, AFFIRMED.......................................................... PN214

EXAMINATION-IN-CHIEF BY MR WEBB.................................................... PN214

EXHIBIT #TWU2 WITNESS STATEMENT OF SHANE BRAZ................. PN220

CROSS-EXAMINATION BY MR MURRAY.................................................. PN258

THE WITNESS WITHDREW............................................................................ PN367

DARREN PAUL WHITEMAN, SWORN......................................................... PN373

EXAMINATION-IN-CHIEF BY MR WEBB.................................................... PN373

EXHIBIT #TWU3 STATEMENT OF DARREN PAUL WHITEMAN........ PN379

CROSS-EXAMINATION BY MR MURRAY.................................................. PN388

THE WITNESS WITHDREW............................................................................ PN527

RODNEY CHARLES HARRY POHLMANN, SWORN................................. PN534

EXAMINATION-IN-CHIEF BY MR WEBB.................................................... PN534

EXHIBIT #TWU4 STATEMENT OF RODNEY CHARLES HARRY POHLMANN          PN563

CROSS-EXAMINATION BY MR MURRAY.................................................. PN563

THE WITNESS WITHDREW............................................................................ PN616

SUSAN MAREE MCGREGOR, SWORN........................................................ PN639

EXAMINATION-IN-CHIEF BY MR MURRAY............................................. PN639

EXHIBIT #AFS1 WITNESS STATEMENT OF SUSAN MCGREGOR DATED 17/05/2017................................................................................................................................. PN647

CROSS-EXAMINATION BY MR WEBB......................................................... PN648

THE WITNESS WITHDREW............................................................................ PN748

DAVID ARTHUR JACKMAN, SWORN.......................................................... PN750

EXAMINATION-IN-CHIEF BY MR MURRAY............................................. PN750

EXHIBIT #AFS2 STATEMENT OF DAVID ARTHUR JACKMAN 18/05/2017 PN756

CROSS-EXAMINATION BY MR WEBB......................................................... PN758

RE-EXAMINATION BY MR MURRAY.......................................................... PN884

THE WITNESS WITHDREW............................................................................ PN894