C2017/1572, Transcript of Proceedings [2017] FWCTrans 271 (26 June 2017)

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PN1

THE DEPUTY PRESIDENT: Could I have the appearances.

PN2

MS L DE PLATER: Thank you, your Honour. If it pleases the Commission, my name is De Plater, initial L. I appear on behalf of the Transport Workers Union. I have with me at the Bar table, Mr T Rogers. Mr Rogers is the official in charge of airports at the union.

PN3

MR B RAUF: If it please, Rauf, initial B, for the respondent, instructed by Ms M Azzi. Also at the Bar table, Mr M O'Neil, from the respondent.

PN4

THE DEPUTY PRESIDENT: I'm not sure; was permission granted - - -

PN5

MR RAUF: I haven't addressed the issue of permission, because under the relevant dispute resolution procedure, the parties have a right to legal representation.

PN6

THE DEPUTY PRESIDENT: That's right, yes. I remember that from another dispute, but I thought it was rather unusual that that provision applied.

PN7

MR RAUF: It is rather.

PN8

THE DEPUTY PRESIDENT: Yes, all right. So there is no need. Thank you.

PN9

MR RAUF: Thank you, Deputy President.

PN10

THE DEPUTY PRESIDENT: Yes, all right. Are you ready to proceed, Ms De Plater?

PN11

MS DE PLATER: Yes, your Honour. This is an application for the Commission to deal with a dispute under section 739 of the Act in accordance with the dispute settlement procedure contained at clause 8 of the Qantas Ground Services Pty Ltd Ground Handling Agreement 2015. Your Honour has the material in front of you, but, by way of a brief outline, the dispute between the parties in this matter is in relation to the interpretation and application of the classification structures contained in attachment B to the agreement to commissionaires engaged by the respondent. In particular, whether commissionaires fall within the ground crew 2 - or GC2 - classification or whether they correctly fall within the GC3 classification.

PN12

Essentially the dispute comes down to whether commissionaires perform passenger handling work for the purposes of the agreement and there is a dispute between the parties as to what is meant by the term "passenger handling", and your Honour will hear evidence on that. If your Honour is satisfied that commissionaires perform passenger handling work, then in our submission it follows that commissionaires should fall within the GC3 classification under the agreement and we'll be asking your Honour to make a determination to that effect in resolution of the dispute.

PN13

The applicant has three witnesses today, your Honour, but before I call our first witness there is just a preliminary matter that I would like to make a record of. That is regarding the release of the applicant's witnesses by the respondent for today's hearing. A request was made last Tuesday, 6 June, by Mr Rogers, who is the TWU official responsible for airports, to Qantas HR to have the employee witnesses released with pay in order to give evidence at today's hearing.

PN14

A response was received from Michael O'Neil, who is the head of industrial relations for Qantas airlines, that the shifts of Chris Price and Camron Beach, who were originally rostered to work today, would be changed so that they could be rostered off today. Mr Wayne Trinder was already rostered off today, but essentially the view of the respondent was that the attendance at the hearing by these witnesses was of their own volition and in their own time, and they won't be paid for it.

PN15

The three witnesses are, nonetheless, present today. However, I just wanted to state for the record the union's disappointment with the decision taken by the respondent to require its employees to attend the hearing unpaid today. Having said that, I will now call our first witness, Mr Camron Beach.

PN16

MR RAUF: Just before the witness is called, also for the record I suppose I should briefly note the position of the respondent as to that issue raised. That position is that the work arrangements of the relevant witness employees was rearranged so that they undertook their work on other days and were on days off so that they could attend these proceedings. That is appropriate and, in my submission, there is no criticism that really arises as a result of the respondent so accommodating these employees so that they could attend without having their work affected.

PN17

THE DEPUTY PRESIDENT: So they suffer no loss of earnings as a result?

PN18

MR RAUF: Well, given that the work arrangements were rearranged, the effect of it is that they don't suffer any loss because they have attended for the work that they were rostered to work and it has been rearranged so that the day today is a day off for all the witnesses, not just one of them. The rostered day off, that is.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

THE ASSOCIATE: Please state your full name and address.

PN21

MR BEACH: Mr Camron Beach, (address supplied).

<CAMRON BEACH, SWORN [10.13 AM]

EXAMINATION-IN-CHIEF BY MS DE PLATER [10.13 AM]

PN22

MS DE PLATER: Thank you, Mr Beach. Would you state your full name and address for the record?‑‑‑Yes. Mr Camron Beach. Address (address supplied).

PN23

Did you make a statement in these proceedings?‑‑‑Correct.

PN24

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

PN25

The statement is signed 8 May 2017?‑‑‑Yes.

PN26

Is that statement true and correct to the best of your knowledge and belief?‑‑‑It is true.

PN27

I seek to tender that statement, your Honour.

PN28

THE DEPUTY PRESIDENT: Any objection?

PN29

MR RAUF: There is no objection.

PN30

THE DEPUTY PRESIDENT: I'll mark the statement of Camron Beach, exhibit 1.

EXHIBIT #1 STATEMENT OF CAMRON BEACH SIGNED 08/05/2017

PN31

MS DE PLATER: I will just ask you a couple of questions about your statement, Mr Beach. You say at paragraph 2 that you have worked for the respondent for around seven years. Is that correct?‑‑‑Yes, seven years and about four or five months.

*** CAMRON BEACH XN MS DE PLATER

PN32

Okay. What did you do before that time?‑‑‑I worked at a betting agency; the TAB.

PN33

Are you aware of what this dispute before the Commission is about today?‑‑‑It's in regard to the understanding of the words "passenger handling" and the pay in the award.

PN34

What is your understanding of what the term "passenger handling" means?‑‑‑"Passenger means obviously a customer of the airline. "Handling" means obviously touching and holding things. So if you put the two words together, when I took the job I thought that I would have some kind of physical thing to do in transporting passengers.

PN35

Have you been involved in the negotiations for any enterprise agreement for QGS since you've been employed by QGS?‑‑‑No. No, I haven't, sorry.

PN36

At paragraph 7 of your statement, you describe the duties you perform as a commissionaire?‑‑‑Mm‑hm.

PN37

Paragraph 7(n), you say that you regularly assist vision impaired passengers?‑‑‑Correct.

PN38

Can you just describe what kind of assistance you provide to passengers?‑‑‑Certainly. If they're a blind passenger, if they have a guide dog, it's okay. The guide dog will follow you, but if they have no guide dog and have only got a cane, I have to stand on one of their sides, they hold my elbow - just like here - and then I have got to obviously direct them in the direction that we need to. If we're coming up to an escalator or something like that, I've got to grab their hand and place it on the railing and help them up the escalators. Sometimes if there is an issue - very rarely, but if there is an issue - they might like look like they're not stable and it also happens with elderly, as well - you have to put place a hand behind the back of them because you don't want them to fall down.

PN39

Thank you. At paragraph 7(o), you say that you assist any passengers who require assistance?‑‑‑Correct.

*** CAMRON BEACH XN MS DE PLATER

PN40

Can you explain what you mean by that?‑‑‑Yesterday I was dropping a passenger off at the carousel. I believe it was a Chinese or a Japanese gentleman; couldn't speak a word of English. He asked me for some assistance. He put out his phone. It was all in Japanese or Asian writing, I'm not quite sure. All I could understand was "QF790". I explained to him to follow me. I helped him up the escalators, took him to a customer service agent. I explained to the customer service agent there what he was trying to explain to me and then I escorted him through customer service, and then pointed him to the direction of gate 12.

PN41

Sorry, was that one of the passengers that you were already assisting or is that just a member of the public?‑‑‑No, usually when it comes to assisting people, it could be from just - in regard to any passenger who requires assistance, I'm just referring to if someone comes up to me, approaches me, can see me in my Qantas uniform, I will give information and directions and explain to them what they need to know.

PN42

Just finally, at paragraph 8 of your statement you say there is a very high level of customer service expected of commissionaires. Can you explain why that is?‑‑‑A very high level? Well, there is a lot of importance in it. Obviously we have an image to portray as members of Qantas. We like to make sure that we are - they expect high expectations of us; great service, great communications, prompt, always on time. We have to always be dressed correctly because we also work out on the tarmac and, if it's pouring down with rain, you have to obviously go back in the room and rearrange yourself to make sure you look neat, tidy and presentable to the standards that Qantas request. Knowledge and so forth, and so forth. Yes, there is a high level of customer - and obviously also knowing the information that passengers would like to know. I don't know it all, but I try my best.

PN43

Thank you, Mr Beach. Nothing further.

CROSS-EXAMINATION BY MR RAUF [10.19 AM]

PN44

MR RAUF: Mr Beach, I have a few questions arising out of your evidence to this Commission this morning. Now, it's correct that you're currently engaged as a leading hand?‑‑‑At the moment?

PN45

Yes?‑‑‑I am paid on leading hand wages, but they currently - Qantas has placed me on the commissionaire - - -

PN46

Yes?‑‑‑Because they tell me what position they want me to do.

PN47

But as far as you're concerned, your underlying employment was the role of leading hand. That's right?‑‑‑No, I don't see it that way.

*** CAMRON BEACH XXN MR RAUF

PN48

Well, you're paid as a leading hand, aren't you?‑‑‑Yes, I see, but that's not how I see my role, no.

PN49

I see. So if your pay was adjusted to be less than that of a leading hand, you wouldn't take issue with that?‑‑‑Well, yes, I would.

PN50

Leading hand, that's a level GC3B, isn't it?‑‑‑Correct.

PN51

Which is above both levels GC2 and GC3?‑‑‑Correct.

PN52

But you expect that no matter what role you do, you will be remunerated at the GC3B rate of pay?‑‑‑I do my role that is requested by Qantas.

PN53

I understand?‑‑‑The role of the leading hand I did for about a two and a half year period, maybe three - I'm not quite sure of the exact date - over a seven‑year period.

PN54

That's when you started receiving the rate at GC3B?‑‑‑Yes, of course.

PN55

Yes?‑‑‑When I became a leading hand. Correct.

PN56

And your expectation is that that's the rate that applies to your employment?‑‑‑For a leading hand. Correct. I'm trained as a leading hand to do multiple tasks that other commissionaires aren't able to do and that's why I get paid at that rate.

PN57

Yes. Even though you may be asked to fill in other roles or assist with other roles, your expectation is that you will continue to be paid at a GC3B rate of pay?‑‑‑While I'm listed as a leading hand and while I'm requested to do that role, and what Qantas has asked me to do, I'll gladly do what they ask me to do.

PN58

You also partially undertake that role even when you are engaged as a commissionaire?‑‑‑Yes. I also help - usually the ramp is understaffed. You're probably well aware of that. I assist and I help in regard to my team neighbours to make sure that we run smoothly and operational, and I help out when I can.

PN59

Yes, Mr Beach. I just want to be clear as to your circumstances - - -?‑‑‑Excuse me. You've got some leading questions. I would just like you to get to the question, please.

*** CAMRON BEACH XXN MR RAUF

PN60

Of course. You're entitled to clarify these things and I want to be clear on your situation. So that I am clear, even when you work as a commissionaire - - -?‑‑‑Correct.

PN61

- - - you are paid at the rate GCB3?‑‑‑Correct.

PN62

That is because, on your understanding, you are also undertaking duties over and beyond just that of a commissionaire when you're undertaking the role of a commissionaire?‑‑‑Yes, in a sense.

PN63

Thank you. I think you explained that the GC3B rate relevant to the leading hand, that also has as an aspect of it the supervisory nature?‑‑‑Well, yes. If you're running a team on the tarmac - it used to be a team of three. Ken and myself, that's now a team of two, but, yes, you're in charge. You have a team. You've got to look after your fellow colleagues.

PN64

The GC3B rate or classification, as far as you're aware, that was created as a new classification under the 2013 enterprise agreement. So the one preceding - just before - the one that applies now?‑‑‑I think so. I'm not really quite sure, I'm sorry.

PN65

That's okay. Now, previous to a leading hand, you were also engaged as a baggage handler?‑‑‑For the first - yes. At first, yes.

PN66

That was at a GC2 classification?‑‑‑I'll take your word. I'm not quite sure. I would say so.

PN67

You also performed duties on the ramp?‑‑‑Correct.

PN68

What were those duties?‑‑‑Okay. So I started in the baggage room. I then moved into ramp, which was basically taking luggage back and forth from the plane; loading and unloading of planes. At that time we were cleaning planes, as well, seat belts in and the rubbish, and everything else that needs to be done that is involved. Then from there I went on to commissionaire and I was commissionaire for two and a half to three years, and then I went up to leading hand which involved me supervising - - -

PN69

If I can stop you there. When did you go up to the role of commissionaire? So after you were a baggage handler and then on ramp duties - - -?‑‑‑They put me straight into it.

*** CAMRON BEACH XXN MR RAUF

PN70

If you recall - - -?‑‑‑Look, I can't give you an exact time.

PN71

Okay, that's - - -?‑‑‑But if I had to, I'll say maybe six months. Maybe. I can't give you an exact - sorry about that.

PN72

All right. That's fine. Just focusing for a moment when you were undertaking the duties you've described on the ramp - - -?‑‑‑Which ones? Which duties?

PN73

Ramp duties, conveying baggage to aircraft, et cetera?‑‑‑Yes.

PN74

So that included QantasLink with the smaller Dash 8 planes?‑‑‑At first, by the way.

PN75

Sorry?‑‑‑At first.

PN76

At first, yes. Again just getting clarity as to the duties that you undertook during that phase, that also included receiving and assisting with premium hand luggage?‑‑‑Correct.

PN77

So that would involve taking baggage that was left at the stairs, ascending the Dash 8 - or given to you by customers who were ascending and then loading that onto the plane?‑‑‑Correct. They would leave the bag at the bottom of the steps of the plane as they were walking up and then it's our job to pick up the bags and then put them into the back of the plane.

PN78

On occasions you would receive the bags directly from them as they approached the aircraft or they were given to - - -?‑‑‑They will hand them to you, yes.

PN79

Yes. During that course, you may have interacted with a passenger?‑‑‑Well, you might say, "Hello."

PN80

Yes?‑‑‑But that's about it really.

PN81

But you agree that in receiving that premium hand luggage, you would interact with the passenger as they boarded the plane?‑‑‑Yes, I suppose so. If you look at someone and glance at them, that's interacting, yes.

*** CAMRON BEACH XXN MR RAUF

PN82

You also undertook marshalling of passenger duties?‑‑‑Yes. Qantas asked me to do that role, as well.

PN83

So this was when you were at the QC2 classification on the ramp?‑‑‑Yes. There are two styles of marshalling, by the way.

PN84

Yes, so there's passenger and - - -?‑‑‑At that time, yes. If I was working at the time as part of a team and there was another leading hand, yes. Our job would be to marshal passengers, yes.

PN85

I'm not asking you to go to the duties as a leading hand. I'm still focused on - - -?‑‑‑Me being on the ramp.

PN86

Correct?‑‑‑Okay.

PN87

On the ramp?‑‑‑Yes.

PN88

When you were on the ramp, you also undertook marshalling passenger duties?‑‑‑Correct.

PN89

So that would involve directing passengers along the appropriate path to the aircraft?‑‑‑Just pointing them in a direction so they're out of danger.

PN90

Yes. If they asked you a question along the way or - to assist the passengers in the course of that journey?‑‑‑You can't really - I mean, you can answer a question. You can't really assist them with anything, because if you leave your post, something bad could happen.

PN91

Sure?‑‑‑But you just say, "Please take your bag that way", or, "Please stay on the lines", or something like that.

PN92

If a passenger happened to be on a mobile phone, you would immediately engage with them and instruct them to - - -?‑‑‑But that's not really our job. What happens is it's customer service's role. They're supposed to stop them. If they walk down the bridge, we might say, "Take off the" - you know, "Stop the phone." If they continue with it, then you would tell your leading hand who would then tell customer service, who would then come down and tell them to - - -

*** CAMRON BEACH XXN MR RAUF

PN93

As you're marshalling and directing passengers and if one happened to be on the phone, you wouldn't leave your post, as you said?‑‑‑Correct.

PN94

Or contact your leading hand at that point. You would engage with your passenger to say, "Look", sir/madam, "you need to get off the phone"?‑‑‑We have to say that.

PN95

Yes. So that is another instance when you would have engaged with a passenger. Yes?‑‑‑Yes.

PN96

Just again focusing on your role when you were a baggage handler, but then also on ramp, were you involved at all in - I understand with the introduction of the Next Gen system, sports bags were - when they were automatically checked in, were placed on trays. That right? Then sent off to be loaded onto the plane?‑‑‑It depended on customer service, because if you're in the baggage handling in the back, we just watched the bags come off the conveyor belt. So whoever is upstairs, they distinguish what goes in a bucket and what doesn't. Occasionally you would probably get a lot more sport bags, but the sport bags that are half full - - -

PN97

Yes?‑‑‑You know, like deflated, they would put them in the buckets because they could get stuck in the system, whereas a nice big packed full bag - again it's up to the discrepancy of upstairs.

PN98

Just focusing on the use of these buckets. The bags that required these buckets, they would come down and a baggage handler or - they would then return the buckets back upstairs or where they can be utilised by the customer - - -?‑‑‑Yes, you just take the bag - - -

PN99

THE DEPUTY PRESIDENT: Just wait for the question?‑‑‑Yes, sorry. My apologies, yes. You just take the bag out of the bucket and you just put the bucket on the side of the ground, and then some gentleman walks around and picks up the buckets and takes them back upstairs.

PN100

MR RAUF: That gentleman was generally a baggage handler or someone at the GC2 classification?‑‑‑Sorry, when I first started I don't know if our guys did it, but I would say it would be a ramp person.

PN101

Yes?‑‑‑Yes.

*** CAMRON BEACH XXN MR RAUF

PN102

So they would, as a matter of practice to your knowledge, take the trays back to where they could be utilised by the passengers in the automatic check‑in area?‑‑‑Correct.

PN103

In doing that, the relevant employee would walk past passengers and potentially engage with passengers who may have a question or come across passengers?‑‑‑I can't answer that. I never did that role, so I'm not quite sure, I'm sorry.

PN104

All right. But you're aware that that's a duty which is undertaken by either a baggage handler or a person undertaking ramp duties?‑‑‑Well, I hope someone says something, because it would be rude if they didn't speak to a passenger.

PN105

I'll just direct you to the question. You're aware, aren't you, that the duty of returning these trays is undertaken by a baggage handler or someone on ramp duties?‑‑‑Correct.

PN106

These are employees at the classification level 2. Ground crew classification 2?‑‑‑Maybe. I'm not sure of classifications, I'm sorry.

PN107

Now, you gave evidence that you initially were appointed in the role of a commissionaire, so this is before you became a leading hand?‑‑‑Correct.

PN108

So you became a commissionaire on a full‑time basis?‑‑‑At the time, I was part‑time.

PN109

I see?‑‑‑Part‑time. I think they classify the role as part‑time casual or something.

PN110

Right, but that was your role?‑‑‑Correct.

PN111

You weren't doing anything else at the time?‑‑‑Correct.

PN112

So you were no longer, for instance, doing baggage handling or ramp duties?‑‑‑No, sorry. Again, depending - we have to write our name down for shifts or extensions, so you might get a call and say, "Hey, Camron, I know you're commissionaire from 6.00 to 12.00. Would you like to go on the ramp from 12.00 to 6.00?"

PN113

I see. Even when you are commissionaire, you may be called upon to assist with ramp duties or - - -?‑‑‑Correct.

*** CAMRON BEACH XXN MR RAUF

PN114

But your focus though was the role of commissionaire, wasn't it?‑‑‑Correct.

PN115

In being appointed to the role of commissionaire, it's correct that you responded to internal advertisements seeking expressions of interest?‑‑‑Geez, it's a while ago. It would have been advertised for everyone.

PN116

Yes?‑‑‑I would have applied, yes.

PN117

When you applied, it was clear to you that the rate of pay would continue to be at the classification of ground crew level 2?‑‑‑I wasn't really concerned about the pay or wage. I just wanted the experience of stepping up and moving through the - through Qantas. I just liked the extra responsibilities.

PN118

So your evidence to this Commission is that you were not in any way concerned with what rate of pay you were receiving?‑‑‑Not way back in 2000 and - when I started. 2000 and - I would have to work out the maths. 2010.

PN119

But you understood though that your rate of pay wouldn't change, didn't you?‑‑‑At that time in 2010, I don't think there was a pay - I don't think it was a pay increase. I think it was the same pay as ramp, I believe.

PN120

Before you could commence as a commissionaire, you attended training as to the nature of the work that you were required to perform?‑‑‑Correct.

PN121

You have seen the statement of Brett Hardy in this matter?‑‑‑Just briefly.

PN122

All right. Then perhaps - - -?‑‑‑I've got it here.

PN123

Do you have the annexures?‑‑‑No.

PN124

If I can perhaps assist by handing up - and I might just turn it to the - I want to take you initially to annexure BH7, which is a trainer record. Deputy President, I want to take the witness to BH7.

PN125

THE DEPUTY PRESIDENT: Yes.

*** CAMRON BEACH XXN MR RAUF

PN126

MR RAUF: That is a record indicating when you most recently completed the training for a commissionaire. If you have a look, I think it's the second - - -?‑‑‑This one here?

PN127

Sorry, it's just the other page. Do you see that?‑‑‑Sorry, yes. Sorry. My apologies, yes.

PN128

It's a bit small. It's the second row.

PN129

THE DEPUTY PRESIDENT: What numbered page is this in the bundle?

PN130

MR RAUF: It's numbered page 178, Deputy President.

PN131

It's the first row, Mr Beach, which indicates that assignment date, 23 Jan 2017. Is that when you most recently did the training?‑‑‑No. Is that answering the question? My apologies.

PN132

No, that's okay, but you did do training specific to the commissionaire role before you commenced as a commissionaire?‑‑‑Yes. You know, 2000 and something.

PN133

All right. Perhaps if I can take you to - there is a yellow tab?‑‑‑This one here?

PN134

Yes. Which is annexure BH5, page 132?‑‑‑Mm‑hm.

PN135

You will see that Mr Hardy gives evidence that these are the slides used. These are a version dated 23 October 2015, but in any event from the training for commissionaire as to their duties and the work which they do?‑‑‑Mm‑hm.

PN136

These are slides that are familiar to you?‑‑‑No. These slides weren't available when I was doing commissionaire.

PN137

All right. What was the training that you were given? Were there slides used?‑‑‑Not that I remember. I can't be a hundred per cent sure, but not that I remember. We had a gentleman who was a commissionaire for Qantas and he came out and trained us on all the aspects.

PN138

When you say trained you, what did he train you on?‑‑‑How to use the vehicle. How to use equipment that you need for your role.

*** CAMRON BEACH XXN MR RAUF

PN139

I'll just hold you to that. Just hold that thought. If I can perhaps try and assist. If we just look at these slides, that might prompt some of your memory. If I ask you to go to page 2 of those slides - - -?‑‑‑Introduction?

PN140

Yes. You'll see at the very beginning:

PN141

This module provides information on how to assist customers with specific needs using the approved Qantas group handling aids.

PN142

Then if you go to page 4, there is discussion of what is a passenger assistance brochure. Do you see that?‑‑‑Yes, I see that.

PN143

Can I ask you to explain what do you understand to be the passenger assistance brochure?‑‑‑Well, I have never seen it, but if I'm going by the wording, I would say it would be some information in regards to how to assist a passenger.

PN144

I see. This training indicates that that is a brochure provided to the customer service staff. Is that not something provided to you?‑‑‑Not that I'm aware of. None of our commissionaires have received that brochure.

PN145

Going to this equipment - so page 8, for instance, and page 9 - there is various instruction on wheelchairs and the interactions of wheelchairs with the loading capacities, for instance, of a Dash 8. This is something that you would have considered and been trained on?‑‑‑Correct.

PN146

Further, if you go to the page of the slides, 12, entitled "Jony Belt", so you would have been shown how to correctly use the Jony Belt when assisting a customer?‑‑‑Correct.

PN147

Then over the page, you would have been trained on using a sling?‑‑‑That's correct.

PN148

Then, over the page, also a slide board?‑‑‑Correct.

PN149

The next few pages refer to a passenger assistance device?‑‑‑Is that on page 16?

PN150

Yes?‑‑‑I have never been trained on that.

*** CAMRON BEACH XXN MR RAUF

PN151

Sorry?‑‑‑Have never been trained on that.

PN152

I see. All right. There is, on page 21, the Eagle passenger hoist?‑‑‑Yes.

PN153

So that is a piece of equipment that you would have been trained to use and on safe procedure, et cetera?‑‑‑Correct.

PN154

Of course in utilising these aids there was also some physical work and so you were instructed on safe manual handling?‑‑‑Correct.

PN155

The focus of the training that you attended was to correctly utilise the appropriate handling aid in conveying a passenger?‑‑‑We asked the passenger what equipment and what they need to assist in helping them move. Once we worked that out, we then used the equipment that is appropriate without injuring ourselves - - -

PN156

Could I just stop you there for a moment. You say "we". I want you to give the evidence as you know it?‑‑‑Mm‑hm.

PN157

Is it your evidence to this Commission that initially you don't know what a passenger may need and so you attend to that passenger without knowledge of what device you might need to use?‑‑‑Of course.

PN158

So if it happens that they need a wheelchair, well, then you will go away and obtain the relevant equipment and then come back a second time?‑‑‑Yes. We're unaware - what happens is we get a phone call - a radio call that there is a passenger that requires assistance.

PN159

Who do you get that from?‑‑‑Mostly from customer service.

PN160

Yes?‑‑‑Then we go outside. We usually take a wheelchair with us, because that's usually the main thing, and then we speak to the passenger to find out their needs or wants or what's requested or what - - -

PN161

When customer service contact you, they inform you of the name of the passenger?‑‑‑Some customer service people do and some don't, I'm sorry.

*** CAMRON BEACH XXN MR RAUF

PN162

All right. As a matter of practice when you receive a call from a customer service staff, they tell you - I understand that there are exceptions, but as a matter of practice they will tell you the passenger's name?‑‑‑No, they don't, I'm sorry.

PN163

All right. So as a matter of practice, you don't know the passenger's name?‑‑‑No.

PN164

All right?‑‑‑I could give you a call, if you like, of how it goes.

PN165

If I can ask you certain questions?‑‑‑Yes, sure. Sorry.

PN166

You can give your evidence as to what the position is. So you get the call from the customer service staff?‑‑‑Mm‑hm.

PN167

They may or may not tell you the name, but they tell you where the passenger will be?‑‑‑Correct.

PN168

They will, as a matter of practice, tell you what aid or device may be required?‑‑‑Yes.

PN169

So in attending to the gate, for instance, you will already have as a matter of practice some idea as to what device you will need?‑‑‑No.

PN170

I asked you earlier and you answered yes; that as a matter of practice the customer service staff will tell you what handling aid may be required and you answered yes to that?‑‑‑I can give you an answer to that.

PN171

Well, you answered yes and I'm asking, following on from that, that again as a matter of practice - now I understand there are exceptions and there may be variations on the theme, but I'm concerned with the general practice. Given your answer to the earlier question and in light of that, as a general practice you would attend to a particular passenger with an understanding of what device may be required?‑‑‑May be. Yes, may be. That word "may be", yes. We're told it might be an Eagle lift required and we'll set it all up there, and when we get to see the passenger when we go, we don't need it because the person who has said hello to them has assumed that that's what they require and then they pass on the information, but it could be totally 100 per cent wrong.

PN172

So as a matter of practice, there is the initial interaction by that passenger with someone in customer service?‑‑‑Yes.

*** CAMRON BEACH XXN MR RAUF

PN173

Who then convey the instructions back to you to go and assist?‑‑‑Correct.

PN174

In light of the training which we've discussed, you will agree with me that an important function of your role is to use the correct handling aid or device and to use it in a safe way to assist a particular passenger?‑‑‑Correct.

PN175

Now, if I can pick up just by way of example, you might get to a particular gate and the device which is required is a wheelchair?‑‑‑Mm‑hm.

PN176

In using that wheelchair and conveying a passenger from one point to another, it's quite possible, isn't it, that you can undertake the duty without the need to even speak to the passenger?‑‑‑No, that would be rude.

PN177

I understand that it may or may not be rude, but my question to you, Mr Beach - and it's important you listen to the question - is that you could undertake that duty without even the need to speak to the passenger?‑‑‑No, I disagree with that.

PN178

All right. You say that you could not undertake that duty - - -?‑‑‑You need to speak to the passenger.

PN179

Why do you say you need to speak to the passenger?‑‑‑Because if they're elderly and they're leaning back, the seat could be too low. They could drop back and you need to support their back so they don't fall or if you haven't locked the wheels on the wheelchair and they decide to step back before you have even done it, the wheelchair can move off and that can cause damage to themselves. You need to say, you know, "Hi there. Please stand still. I'll put the wheelchair behind you. Slowly sit back", and stuff like that. It's just safety, that's all.

PN180

Yes. So the nature of that interaction is really safe instruction in using a particular aid to assist that passenger?‑‑‑Correct.

PN181

THE DEPUTY PRESIDENT: Mr Beach, you said that you may not know the name of the passenger. How do you know who it is?‑‑‑Very good point. I might get a - do I - - -

*** CAMRON BEACH XXN MR RAUF

PN182

Yes, answer me?‑‑‑Sorry. My apologies. I might get a radio call, "Camron, there is someone at oversize going to 002040", or there might be one or two passengers up at oversize, "Take a wheelchair." It happens probably 50/50 and then I take out the wheelchair. I get to the counter and there might be two or three people. Sometimes I can ask who's going to - I'll ask, "Where are you headed to?" and they might go, "Brisbane" or "Dubbo" - "You're my passenger."

PN183

MR RAUF: Indeed it may be the case that that particular passenger has approached customer service staff to say, "Look, I'll need a wheelchair", and so the relevant customer service staff tells you that, "Look, that's the passenger that needs assistance"?‑‑‑Correct.

PN184

More often than not, in circumstances where you don't know the name of a passenger, that passenger has already approached customer service staff to alert them of the need for assistance and then the customer service staff will ultimately get in touch with the commissionaire to come up to the relevant gate and assist that passenger?‑‑‑If you're referring to a gate, yes. If we have to go to oversize and they've changed members, the new member at the oversize counter doesn't even know who the wheelchair passenger is.

PN185

But the passenger is presumably standing at the oversize baggage counter waiting?‑‑‑Yes.

PN186

You have got a copy of your statement, Mr Beach?‑‑‑Yes, I do.

PN187

Your general evidence at 7(a) about transporting disabled, elderly and otherwise mobility passengers, I think we have clarified that as a matter of practice the initial interaction which you have on the assistance required is through the customer service staff?‑‑‑(No audible reply)

PN188

Yes?‑‑‑Yes.

PN189

At (b) you say that it may often be necessary to pick up a passenger or drop them off at their cars in the carpark or the train station?‑‑‑Mm‑hm.

PN190

Now, is that something that you do without any instruction or conferring with anyone else?‑‑‑My supervisors are aware and if we're not busy, we're told to go and do that.

*** CAMRON BEACH XXN MR RAUF

PN191

When you say your supervisors are aware, would you contact them to say, "Look, this person needs assistance to get to the carpark. Is it okay if I do that"?‑‑‑No. What we do is after speaking to the passenger, I will then ring my fellow colleagues that I'm working with and ask them, "Are we busy on the screen?" which basically means have we got many jobs. If we haven't got any jobs, I will then assist that passenger to the train station or so forth.

PN192

In relation to undertaking these duties for QantasLink aircraft, is there the use of a screen?‑‑‑Sorry, say that again.

PN193

Is a screen used to capture the task for QantasLink?‑‑‑Correct, behind every customer service desk. It's listed flights inbound and outbound, and what requirements are needed. It tell us that it could be something like Dubbo needs a wheelchair inbound or it might say, "Meet and assist", or so forth and so forth.

PN194

That is information which is entered into the screens, as you explained - the flights or the requirements, et cetera - by customer service staff?‑‑‑Correct. Sometimes I occasionally do it. If it's not on the screen and customer service has forgotten to put that up, us as commissionaires will then notify ops and say, "Could you please put a wheelchair on a certain flight because it has been missed."

PN195

As a matter of practice, the screen which you refer to in understanding the work that is required to be done and which indicates the requirements, that information is entered into the screen by customer service staff?‑‑‑Yes.

PN196

You are able to readily refer to that to understand what jobs, how many, to form a view about how busy you might be?‑‑‑Correct.

PN197

Indeed, you can refer to that screen in understanding how long a particular task might take?‑‑‑Correct.

PN198

Because it gives you sufficient information to give you an idea as to - "Well, look, I'll need a certain amount of time because that involves operating an Eagle lift"?‑‑‑Correct.

PN199

You were asked questions by Ms De Plater on 7(n) and (o). You say that you regularly assist vision impaired passengers and that may be by, if they don't have a guide dog, guiding them to the appropriate place?‑‑‑Mm‑hm.

PN200

You may also use a wheelchair or a small cart to convey them if they are vision impaired and don't have a guide dog?‑‑‑Whatever is needed or required, yes.

*** CAMRON BEACH XXN MR RAUF

PN201

If you get to the gate and there is a person who requires assistance who is being conveyed to an aircraft and they don't have a guide dog - they are vision impaired - more likely than not you will use a wheelchair or a small cart if that's available?‑‑‑Can you please - sorry, I'm not visualising it. Can you please repeat that question.

PN202

Sure. I'm going to the example you gave with a vision impaired person who, for instance, doesn't have a guide dog. Now, to help them, rather than take them by the arm, more likely than not you would assist them using a wheelchair or a small cart?‑‑‑Not a wheelchair, because mostly they can walk. If we happen to be at gate 1 and we're going to gate 16, which is on the other side, and there is able to be transport to make things a bit quicker, we use a vehicle. Correct.

PN203

Yes?‑‑‑You gave a further example about assisting an Asian passenger who handed you his phone. Your evidence was that you took that passenger to the customer service desk?‑‑‑The kiosk upstairs, yes.

PN204

The kiosk upstairs, which was attended by customer service staff?‑‑‑Correct.

PN205

The customer service staff then engaged with the passenger to understand their requirements?‑‑‑No. I basically just said to the lady that, "The gentleman is travelling on QF790. Here is his passport", because he handed me his passport and then the phone. I said, "I believe that he just wants his baggage to go on the belt and go to the plane." She looked at all the details, printed up a boarding pass, handed it to him and I told the gentleman to put the bag over there - I just went like that - and then he followed me through security. Then I showed him - when we walk through, there is a big "six" and on the ticket there is a "12" for the gate and it has been circled.

PN206

You pointed him in the right direction?‑‑‑Yes.

PN207

You say that in undertaking your duties and in explaining why a high level of customer service is expected for things such as the image which is presented and your interaction, et cetera, it needs to be of a high standard in reflection of your employer Qantas and its standards?‑‑‑Absolutely, and it's just good manners.

PN208

That's something which you were also, as a good employee, no doubt, mindful of when you undertook ramp duties, for instance?‑‑‑Correct.

PN209

And as a baggage handler, for instance?‑‑‑And all the time.

*** CAMRON BEACH XXN MR RAUF

PN210

Yes. Just finally, Mr Beach, since the time that you have been working as a commissionaire, so when you were first appointed and now - although now I understand that you might have a leading hand role, as well. There may be other duties, as well, but the role of a commissionaire and this function of correctly using the appropriate handling aid to assist passengers, that hasn't changed, has it?‑‑‑No, the procedures have been pretty well - it hasn't changed.

PN211

Thank you. That is the cross‑examination, Deputy President.

PN212

MS DE PLATER: Nothing arising.

PN213

THE DEPUTY PRESIDENT: Thank you, Mr Beach. You may step down. You are released from your oath and excused from further attendance.

<THE WITNESS WITHDREW [10.55 AM]

PN214

MS DE PLATER: We call our second witness, Christopher Price.

PN215

THE ASSOCIATE: Please state your full name and address.

PN216

MR PRICE: Christopher Price, (address supplied).

<CHRISTOPHER PRICE, SWORN [10.56 AM]

EXAMINATION-IN-CHIEF BY MS DE PLATER [10.56 AM]

PN217

MS DE PLATER: Mr Price, could you state your full name and address for the record, please?‑‑‑Christopher Price, (address supplied)

PN218

Did you make a statement in these proceedings?‑‑‑Yes.

PN219

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

PN220

That statement was signed on 4 May 2017?‑‑‑Yes, 04/05/17.

PN221

Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN222

I seek to tender that statement.

PN223

THE DEPUTY PRESIDENT: Any objection?

PN224

MR RAUF: No objection, Deputy President.

*** CHRISTOPHER PRICE XN MS DE PLATER

PN225

THE DEPUTY PRESIDENT: I'll mark the statement of Mr Price, exhibit 2.

EXHIBIT #2 STATEMENT OF CHRISTOPHER PRICE SIGNED 04/05/2017

PN226

MS DE PLATER: Just a couple of questions, Mr Price, about your statement. You say at paragraph 2 that you have been employed by the respondent as a commissionaire for six years. Is that correct?‑‑‑Yes, roughly six years.

PN227

As a commissionaire?‑‑‑A commissionaire probably about three years.

PN228

The last three years?‑‑‑The last three years, yes.

PN229

The most recent - okay. Are you aware of what this dispute is about in the Commission today?‑‑‑Yes.

PN230

Could you explain your understanding of that to the Commission?‑‑‑That we're in a role of looking after passengers and all that, on the flights and all that.

PN231

Have you ever been involved in the negotiations for an enterprise agreement since you've been employed - - -?‑‑‑No, I haven't.

PN232

I'll take you to paragraph 9 of your statement. You say there:

PN233

There is a very high level of customer service expected of commissionaires by the respondent and also by the passengers we assist.

PN234

Can you just explain why that is or what made you make that statement?‑‑‑Well, our job, you know, is putting people on and off the planes, so obviously we've got to look after what we do with the people. You know, we're constantly handling passengers, you know, taking them to the planes, off the planes to taxi ranks, toilets, you know, wherever. Maybe shops and whatever on the way back. You know, we're pretty much handling passengers all day long, just talking to them and you know, greeting them.

PN235

You mentioned handling passengers. Are you aware of the term "passenger handling" that is in your enterprise agreement?‑‑‑Well, it's a term - like, you handle passengers from as soon as they get out of the cab until they board the flight, so everybody is handling passengers all the way through.

*** CHRISTOPHER PRICE XN MS DE PLATER

PN236

That's your understanding of that term?‑‑‑That's my understanding, yes.

PN237

I have nothing further.

CROSS-EXAMINATION BY MR RAUF [10.59 AM]

PN238

MR RAUF: Mr Price, I have got some questions for you this morning arising out of your evidence to this Commission. You gave evidence that you have been employed in the role of commissionaire for the last three years. Before that, you were engaged as a baggage handler, since 2012?‑‑‑That's correct, yes.

PN239

As a baggage handler, did you also undertake ramp duties?‑‑‑Yes.

PN240

You would, for instance, take bags out to QantasLink Dash 8 aircraft?‑‑‑Yes.

PN241

You would also assist, for instance, with receiving and loading premium hand luggage?‑‑‑On occasions, yes.

PN242

On those occasions the baggage may be left at the stairs to the aircraft or a passenger might, if you're standing there, approach you directly and give you a bag?‑‑‑Not directly, no.

PN243

On occasions they would have given you the bag to load onto the plane or you might have assisted to take that off them seeing that it was premium hand luggage?‑‑‑It might have been once or twice, yes, but - - -

PN244

Did you undertake any marshalling of passenger duties?‑‑‑No, I didn't. No, I haven't, sorry.

PN245

All right. I understand that there are buckets or trays which are used for some bags when they are automatically checked in to be loaded onto aircraft and that these buckets or trays are then returned to the point where the customers can use them. Did you, as a baggage handler, at any stage undertake or return these trays to the place where the customers would use them once the bags had been loaded on?‑‑‑No. I haven't, no.

PN246

Just going by the date you have given, you said that you commenced working as a commissionaire over the last three years. You responded, didn't you, to an internal advertisement seeking expressions of interest in the role?‑‑‑Yes.

*** CHRISTOPHER PRICE XXN MR RAUF

PN247

In applying, you, at the time - in light of the three years you have given, I'm sort of dating back to about early 2014 - understood that the rate of pay for a commissionaire was at the ground crew level 2?‑‑‑At the time, yes.

PN248

So there wouldn't be any change in the rate of pay for you if you were accepted as a commissionaire?‑‑‑Not to my knowledge at the time, because I wasn't informed about other things that were going on in the EBA, so I wasn't quite sure what was going on.

PN249

You read the advertisement, didn't you, in responding?‑‑‑Yes.

PN250

It was clear to you that the rate of pay was at the ground crew level 2?‑‑‑Yes.

PN251

That has remained the case since you have been employed as a commissionaire in early 2014?‑‑‑Yes.

PN252

Now, before you started working or doing any of the duties of a commissionaire, you attended specific training?‑‑‑Yes.

PN253

Have you seen the statement of Brett Hardy in this matter?‑‑‑Yes, I've read where he says that - - -

PN254

I want to direct your attention, rather than talk generally about the statement. I might hand up to you an annexure, which is annexure BH5, page 132, of Mr Brett Hardy's statement. If you can just have a look at that?‑‑‑Whereabouts? What is it?

PN255

Do you see those slides there?‑‑‑Yes.

PN256

These are the slides that were used during the training which you attended? Have a flick through if it helps to jog your memory?‑‑‑Pretty much so, yes.

PN257

If I go to, for instance, page 8, you will see there that there are various instructions and discussion points of the use of wheelchairs?‑‑‑Yes.

PN258

So that was something you covered in the training?‑‑‑Yes.

*** CHRISTOPHER PRICE XXN MR RAUF

PN259

Over the page, the cargo hold restrictions for wheelchairs?‑‑‑Whereabouts is that?

PN260

On page 9, sorry, of the slides?‑‑‑Yes.

PN261

Then at page 12 you also discuss, "We were trained on the safe use of what is referred to as a Jony Belt"?‑‑‑That's correct.

PN262

Over the page at page 13, similarly you were trained on the safe use of a sling?‑‑‑Yes.

PN263

Over the page to 14, you were trained on the safe use of a slide board?‑‑‑Yes.

PN264

Were you also trained in relation to the passenger assist device?‑‑‑DPL. Yes, we were.

PN265

Again, that involved understanding the functionalities of that equipment and how to safely use it?‑‑‑Yes.

PN266

If I can then just take you to page 21 of those slides, there is what is referred to as an Eagle 3 passenger hoist?‑‑‑That's correct.

PN267

You see that. That's something you were given training on so that you could safely use this particular device?‑‑‑Yes.

PN268

As a part of your training, did you actually operate these devices?‑‑‑Yes.

PN269

Were there observations made as you operated these devices?‑‑‑Observations?

PN270

Or did someone watch you as you - - -?‑‑‑Yes. We got trained in the position, yes.

PN271

All right?‑‑‑We have also been trained in customer service, as well.

PN272

I understand. I'll come that?‑‑‑So I don't understand - - -

*** CHRISTOPHER PRICE XXN MR RAUF

PN273

I'll come to that. With the various devices that we have gone to, you will agree with me that the focus of the training was to familiarise you with and make sure you were able to safely use each of those particular devices?‑‑‑Yes, that's correct.

PN274

You understood from the training that an important part of your function as a commissionaire was to use the appropriate device correctly and safely in assisting a passenger?‑‑‑In handling passengers, yes.

PN275

Just going to the job itself, evidence has been given that instructions are, as a matter of practice, conveyed through customer service staff about what you might need to do?‑‑‑Sorry?

PN276

Sorry, I've asked the question in a confusing way. I'll try and simplify it to be clearer. In assisting passengers, you are informed by customer service staff about which passenger requires assistance?‑‑‑No.

PN277

How do you know who to assist?‑‑‑Well, a lot of times the passengers are at gates or we pick them up at oversize. We get called from resources on the two‑way and we've got the SNOW, you know. We can go on the computer and they allocate jobs. The job allocation is to go out to, say, oversize and pick up a passenger. If so, we get there and we ask the passenger - we say, "What are your needs? What do we need to do?" and blah blah blah. Obviously we might have an Eagle lift or we might have just straight on - walk them down the thingo.

PN278

You referred to SNOW. That's the computer system which indicates and allocates your work?‑‑‑It allocates tasks.

PN279

That tells you the task that has to be done?‑‑‑That's correct. That's up on main line.

PN280

When you say "main line", what is the main line?‑‑‑The jets.

PN281

Right. So this SNOW or this computer system, this will tell you that there is a passenger who requires assistance at a particular gate, for example?‑‑‑Yes.

PN282

It will indicate the particular device that you might need?‑‑‑Device or - - -

PN283

Well, a wheelchair?‑‑‑Yes.

*** CHRISTOPHER PRICE XXN MR RAUF

PN284

So you will have an understanding that, "Well, this is what I need to do and I'll most likely need this wheelchair", for instance, when you go to that passenger?‑‑‑On occasions, yes, but more times than not we have to ask them what they need, you now, because obviously we might not have the right equipment when we get there.

PN285

Right?‑‑‑We might get there and the SNOW might be right.

PN286

I see?‑‑‑Or we will get there and they might say an Eagle lift, but they don't ever - - -

PN287

But it's the SNOW that you refer to in the first instance?‑‑‑Or they don't need an Eagle lift. They need an aisle chair or something.

PN288

It might be that you get there and it turns out that something else is required, but it's the SNOW system that you refer to in understanding the work requirements in the first instance?‑‑‑That tells us - yes. That's the whole airport works off the SNOW.

PN289

Yes. The information in the SNOW assistance - - -?‑‑‑That's staff and everything.

PN290

The information in the SNOW system as it relates to you, that is entered in there by customer service staff?‑‑‑No, by resources.

PN291

Where do resources get the information from?‑‑‑They get it at a lot of different places. Obviously people ring up prior to their flight, so that's all logged into the system.

PN292

Yes?‑‑‑So the resources go there. On occasions if people do come through, they go to oversize, which is gate staff there who organise with resources who organise with us.

PN293

Just so that we're clear, as a matter of practice the passenger would have interacted with someone else - be it over the phone or at the oversize desk, for instance - in saying, "Look, I need assistance with a wheelchair", or, "I need some help getting to a particular gate", so they will interact with someone else and then that instruction is conveyed to a commissionaire?‑‑‑Nine times out of 10, yes.

PN294

All right. What is the one time out of 10 that you say - - -?‑‑‑Well, I might be walking through the thingo and someone might come up to me, and ask me - - -

*** CHRISTOPHER PRICE XXN MR RAUF

PN295

That, "I need an Eagle boost", or - - -?‑‑‑"I need assistance." It wouldn't matter if it was an Eagle lift or an aisle chair, whatever, but there is occasions when we're walking around that people will come up to us.

PN296

Nine times out of 10, on your evidence, the instruction as to what a passenger might require is conveyed to you through someone other than the passenger?‑‑‑Yes.

PN297

You mentioned that the SNOW system is used for main line. You're distinguishing, of course, between main line and QantasLink aircraft?‑‑‑That's correct.

PN298

With QantasLink aircraft, the instruction is conveyed to you from the customer service staff?‑‑‑Via radio, I think. I'm not - - -

PN299

Yes. So the customer service staff will initially engage with a passenger and, if there is a need, will then get in contact with a commissionaire to say - - -?‑‑‑Again, on occasions. It's on screen, as well. They go off the screen, where they look at a screen and they go to that job. Obviously they get to that job and ask what they need.

PN300

So the screen is also used for QantasLink. Is that your evidence?‑‑‑That's correct, yes.

PN301

I see. If I could just take you to your statement. Have you got a copy of that, Mr Price?‑‑‑(No audible reply)

PN302

If I can just direct you to paragraph 7 where you give evidence about your duties as a commissionaire. Do you see that?‑‑‑Yes.

PN303

You say, for instance, at 7(g), that you may collect passengers prior to check‑in from their cars or taxis or other modes of transportation used to arrive at the airport. The passengers don't directly call you to say, "Can I get picked up from the car?" do they?‑‑‑No. That would be impossible.

PN304

Yes. Indeed, if there is a need to pick them up from, for instance, the carpark or the drop off point, that's an instruction which is conveyed to you by the customer service staff?‑‑‑Again probably resources, not so much the customer service.

*** CHRISTOPHER PRICE XXN MR RAUF

PN305

All right?‑‑‑Again they've probably - the night before or something - rang up and organised it all through whoever is taking the phone call.

PN306

Yes. So in that instance - - -?‑‑‑The IT service, yes. It could be IT.

PN307

- - - the passenger might have called up well before to say, "Look, I'll need this assistance", and then that is put through the system. So someone has engaged with that passenger, entered in the information which is then conveyed to you and you're able to know that, "At this time I've got to go to this point with a wheelchair", for example, "to assist this passenger"?‑‑‑Yes. Again, it will probably be on the SNOW.

PN308

Yes. You don't enter information into the SNOW with the requirements, do you?‑‑‑Again, resources do that.

PN309

Okay?‑‑‑Not customer service at all.

PN310

But you're not involved, as a commissionaire, in entering - - -?‑‑‑Well, I'm not resources.

PN311

Yes, all right. Thank you. In (i), you say that sometimes you would take passengers who require more help beyond the baggage carousel and out to their vehicles or train station. Do you normally confer with your supervisor or someone before you take them to the train station?‑‑‑It all depends how long the job is going to take.

PN312

How do you know how long the job will take?‑‑‑Well, it usually takes five to 10 minutes to do it. We might have another job on screen or on the SNOW, so I would call the resources and inform them that I'm going to the train station and to allocate my other job to someone else.

PN313

All right. Do you engage with your supervisor at all?‑‑‑Resources.

PN314

You say you sometimes organise transport home for passengers. That is conveying them, for instance, to a taxi rank or a pick‑up or drop‑off point at the terminal, isn't it?‑‑‑Well, there is a special position for the special chairs, especially the electric wheelchairs which are 120 kilos. They need special taxis.

PN315

Yes?‑‑‑So we've got to take them to a special spot - - -

*** CHRISTOPHER PRICE XXN MR RAUF

PN316

At the cab rank?‑‑‑Yes, at the cab rank - and then go up to the cab rank bloke, explain to him what we've got. Obviously they send a specialised taxi - - -

PN317

He will organise for the particular taxi to do that?‑‑‑A specialised taxi, yes.

PN318

In giving further evidence in paragraph 9 about the high level of customer service, you say that, "It is important to look after what we do with people." That's something that as a good employee you would have done previous to commissionaire, for instance, even as undertaking ramp duties or a baggage handler. That's right, isn't it?‑‑‑Sorry?

PN319

Customer service and how you - - -?‑‑‑In baggage handler there are no customers down there, so there is no service to the customer.

PN320

All right. You weren't concerned about how you may have presented while you were doing ramp duties?‑‑‑What do you mean, presented?

PN321

Well, how you might - - -?‑‑‑Presented myself or - - -

PN322

You were in the view of passengers, weren't you?‑‑‑It all depends where I was working. I might have been in the hull of the plane.

PN323

You might have been. I understand there are many "might haves". My question to you is that one of those "might haves" was on the ramp undertaking duties, for instance, taking premium hand luggage where you were visible to passengers, right?‑‑‑Yes.

PN324

Do you accept that?‑‑‑Yes.

PN325

In undertaking your duties, you were very mindful about presenting well and being seen to perform your duties well?‑‑‑I present well every day of the week, mate.

PN326

Yes?‑‑‑That's not - you know, if I walk down the street and someone says hello to me, I say hello back. That's just common courtesy.

PN327

So these common courtesies, issues of presentation, that's something which is important no matter what your role it?‑‑‑Of course, yes.

*** CHRISTOPHER PRICE XXN MR RAUF

PN328

That is the cross‑examination, Deputy President.

PN329

MS DE PLATER: Nothing arising, your Honour.

PN330

THE DEPUTY PRESIDENT: Thank you, Mr Price. You may step down. You're released from your oath and excused from further attendance?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.18 AM]

PN331

MS DE PLATER: Our final witness is Mr Wayne Trinder.

PN332

THE ASSOCIATE: Please state your full name and address.

PN333

MR TRINDER: Wayne Owen Trinder, (address supplied).

<WAYNE OWEN TRINDER, SWORN [11.20 AM]

EXAMINATION-IN-CHIEF BY MS DE PLATER [11.20 AM]

PN334

MS DE PLATER: Thank you, Mr Trinder. Could you state your full name and address for the record?‑‑‑Wayne Owen Trinder, (address supplied).

PN335

Did you make a statement in these proceedings?‑‑‑I did.

PN336

Have you got a copy of it with you there?‑‑‑I have.

PN337

That statement is signed 9 May 2017?‑‑‑That's correct.

PN338

Is that statement true and correct to the best of your knowledge and belief?‑‑‑I believe it is.

PN339

I seek to tender that statement.

PN340

MR RAUF: No objection.

*** WAYNE OWEN TRINDER XN MS DE PLATER

PN341

THE DEPUTY PRESIDENT: I'll mark the statement of Mr Trinder as exhibit 3.

EXHIBIT #3 STATEMENT OF WAYNE TRINDER SIGNED 09/05/2017

PN342

MR DE PLATER: Thank you, Mr Trinder. Just a couple of questions about your statement. You say there at paragraph 1 that you're employed by the respondent as regional receive and dispatch. How long have you been employed by the respondent?‑‑‑Since 2011.

PN343

What did you do before that time?‑‑‑I worked in the baggage room. Different areas of - - -

PN344

For the respondent?‑‑‑Correct.

PN345

For how long did you do that role?‑‑‑Five and a bit years.

PN346

Okay?‑‑‑Receive and dispatch for the last 12 months plus.

PN347

So you have been employed by the respondent altogether for about six years?‑‑‑Six and a half years, yes.

PN348

Six and a half. Before that, what did you do?‑‑‑I had a communications company.

PN349

You say at paragraph 5 of your statement that in your role as delegate, you were approached during 2016 by some commissionaires regarding their belief that they perform a passenger handling role?‑‑‑That's correct.

PN350

That they are properly classified as GC3 in the agreement. What is your understanding of what the term "passenger handling" means?‑‑‑Handling passengers.

PN351

Okay. That's all in examination‑in‑chief.

CROSS-EXAMINATION BY MR RAUF [11.22 AM]

PN352

MR RAUF: Mr Trinder, I have a few questions for you arising out of your evidence to the Commission this morning. You gave evidence that for a period of, I think, about five years you were employed in the baggage room?‑‑‑Correct.

*** WAYNE OWEN TRINDER XXN MR RAUF

PN353

Did you also undertake ramp duties during that period?‑‑‑No, nothing really on the ramp. I've been involved on the ramp for the last 15 months.

PN354

All right?‑‑‑I have been out on the ramp. I have driven all the way across. I've worked in international, at seamless, all different divisions of baggage handling, but predominantly in the bag room. I might have delivered something out to the ramp, but nothing signed off actually. Loading an aircraft.

PN355

During the period that you were in the baggage room though, you were focused on handling baggage?‑‑‑On that section of it, yes.

PN356

In the room itself?‑‑‑Yes.

PN357

Not on the ramp?‑‑‑No. That's right.

PN358

Currently you're employed, you say, as regional receive and dispatch; so that is involving operating, I think, a push back?‑‑‑Correct.

PN359

That is the vehicle that pulls and pushes aircraft?‑‑‑Yes. The one I use is for on the Dash aircraft, the smaller aircraft. It captures the front wheel, lifts it up - pulls the aircraft up and drives it back.

PN360

Takes it out to the - - -?‑‑‑Yes. Drops it off, yes.

PN361

Yes?‑‑‑I also do the 717s and talk to the pilots doing their receive and dispatch on those, as well.

PN362

All right. It's fair to understand that you have also been involved in marshalling of aircraft rather than passengers?‑‑‑More marshalling aircraft - 717s in.

PN363

Yes?‑‑‑I haven't marshalled any of the others in. It's only because I haven't been called upon to do it.

PN364

Yes. As a regional receive and dispatch employee, you understand that you're employed at the classification level 3 in the enterprise agreement?‑‑‑That's correct. I've been actually - I've only just been signed off this week as "3". I've been in the relief position for the whole period.

*** WAYNE OWEN TRINDER XXN MR RAUF

PN365

Right?‑‑‑So I've been on higher duties for the whole time.

PN366

On that occasion you would have been paid in accordance with the classification level 3?‑‑‑Correct.

PN367

But now you have been signed off permanently - - -?‑‑‑So now I'm as the GP3.

PN368

- - - as the classification, which is a higher rate of pay than, for instance, the - - -?‑‑‑Working in the bag room.

PN369

Yes. Indeed, to operate machinery such as the push back, there would have been some extensive training on how to operate it?‑‑‑Correct.

PN370

Because you're engaging directly with aircraft?‑‑‑Yes.

PN371

There is exposure, for instance - significant exposure - to aircraft and also passenger safety when you are involved in pushing - - -?‑‑‑And heavy aircraft is different.

PN372

Yes?‑‑‑Every bay is different, so there is a bit to learn.

PN373

So you agree that it's quite an important responsibility in operating the push back from your directly - - -?‑‑‑No argument with that one.

PN374

You have been the union delegate for a number of years?‑‑‑Correct.

PN375

You were involved in the bargaining meetings for the 2015 enterprise agreement or the current enterprise agreement?‑‑‑Correct.

PN376

It's fair to say that you attended most of the bargaining meetings?‑‑‑Yes, the majority of them, I would say I went to.

PN377

At the time it was clear to your understanding that commissionaires were classified at ground classification level 2?‑‑‑I don't think it actually mentions commissionaires in the GC2.

*** WAYNE OWEN TRINDER XXN MR RAUF

PN378

I understand that, but if I can just ask you to focus on the question. In participating in those bargaining meetings, you clearly understood that at that point in time commissionaire were classified at that level 2?‑‑‑I knew they were getting at that level 2, yes.

PN379

Yes. Indeed, that had been the case under the predecessor agreements, as well?‑‑‑Yes.

PN380

There were two predecessor agreements; namely, a 2009 enterprise agreement and then a 2013 enterprise agreement?‑‑‑Yes. That's correct, yes.

PN381

In your capacity as a union delegate participating in the bargaining meetings for the current agreement, you were also engaging with the union in relation to the discussions and the progress of the agreement negotiations?‑‑‑Yes. Somewhat, yes.

PN382

It's fair to say that to your understanding it was also clear that the union understood that commissionaires had always been classified at level 2?‑‑‑I wouldn't say it was clear. A lot of things might not have got dealt with fully. All I knew is at the end when it actually got rolled over, I wasn't the last one. It just all of a sudden - everything just came together.

PN383

Yes. All right. You have attached a number of documents to your statement. Do you have those?‑‑‑I do.

PN384

If I can just ask you to go to the first of those, which is "Expression of interest, relief for leading hand commissionaires". It is indicated as being at the third dot point at the top of the page, level GC3 of the Qantas Ground Services Pty Ltd Ground Handling Agreement 2013. Do you see that?‑‑‑Yes.

PN385

It's fair to say that that particular classification involved supervisory and leadership responsibilities, hence the higher classification?‑‑‑Correct.

PN386

And the reference to the leading hand in the advertisement?‑‑‑Yes.

PN387

To your knowledge, the GC3(a) was a new classification created under the 2013 agreement to accommodate positions with responsibilities and leading hand duties?‑‑‑Yes. I think so, yes.

*** WAYNE OWEN TRINDER XXN MR RAUF

PN388

That is a classification and that then carried over into the 2015 enterprise agreement?‑‑‑The current one, yes.

PN389

If I could just ask you to go to - you have attached a second document, "Special assistance passengers from the customer service local procedures". Who provided this to you?‑‑‑It was one of the commissionaires. I can't remember which one over the time. It was handed to me when I was with Jim Piotrowski and it basically got handed straight to him at the time from me.

PN390

All right. You will see there, for instance, at the second bullet point:

PN391

The customer service check‑in agent will direct the special assist passenger to oversize baggage drop where the special assistance passenger will be registered and the QantasLink customer service desk notified.

PN392

Do you see that?‑‑‑Yes.

PN393

According to this, the passenger in the first instance interacts with customer service staff in communicating their need and the need for assistance to get to a particular aircraft, for instance?‑‑‑Yes.

PN394

Then, to your understanding, what will happen is that once the customer service desk or staff have got the relevant information, they will then get in touch with commissionaires to convey the instruction?‑‑‑Yes, that's what it says. I have never worked in that section.

PN395

Yes. You will see towards the bottom the last two points, "Customer service agent is to advise MOCO." Do you know what "MOCO" is?‑‑‑MOCO, no. I've heard it around.

PN396

All right?‑‑‑I think it's something to do with movements.

PN397

Yes. "Customer service agent", last point, "is to amend the CM flight remarks to reflect special passenger sighted." That last point, is that referring to updating information on a computer system?‑‑‑I wouldn't know.

PN398

All right. That is the cross‑examination of this witness. Thank you.

PN399

MS DE PLATER: There is nothing arising, your Honour.

*** WAYNE OWEN TRINDER XXN MR RAUF

PN400

THE DEPUTY PRESIDENT: Thank you, Mr Trinder. You may step down. You are released from your oath and excused from further attendance?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.31 AM]

PN401

THE DEPUTY PRESIDENT: Does that complete your evidentiary case?

PN402

MS DE PLATER: Yes.

PN403

THE DEPUTY PRESIDENT: That appears to be a convenient time to take the morning adjournment, which I will now do.

SHORT ADJOURNMENT [11.31 AM]

RESUMED [11.50 AM]

PN404

MR RAUF: Deputy President, there's only the one witness for the respondent. I didn't propose to make any opening remarks unless your Honour had any questions. I had in mind calling the witness straight away.

PN405

THE DEPUTY PRESIDENT: Yes, go ahead.

PN406

MR RAUF: Thank you, your Honour. I call Mr Brett Hardy.

PN407

THE ASSOCIATE: Please state your full name and address.

PN408

MR HARDY: Brett Robert Hardy (address supplied).

<BRETT ROBERT HARDY, SWORN [11.51 AM]

EXAMINATION-IN-CHIEF BY MR RAUF [11.51 AM]

PN409

MR RAUF: Mr Hardy, just for the record, your full name is Brett Robert Hardy?‑‑‑That's correct.

PN410

You're employed by Qantas Airways Limited in the role of Head of Qantas Ground Services?‑‑‑That's correct.

*** BRETT ROBERT HARDY XN MR RAUF

PN411

You've been engaged in the role of Head of Qantas Ground Services since April 2011?‑‑‑That is correct.

PN412

You've prepared a statement for the purposes of the proceedings today, comprising of 67 paragraphs and 17 attachments?‑‑‑That is correct.

PN413

Do you have a folder containing your statement and the attachments with you?‑‑‑Yes.

PN414

I understand that there's a correction which needs to be made at paragraph 27, towards the end of the fourth line. The reference to 'above wing activates' should be 'above wing activities'?‑‑‑That is correct.

PN415

With that correction, is your statement true and correct to the best of your knowledge and belief, Mr Hardy?‑‑‑Yes.

PN416

I tender that, Deputy President.

PN417

THE DEPUTY PRESIDENT: Any objection?

PN418

MS DE PLATER: No.

PN419

THE DEPUTY PRESIDENT: I'll mark the witness statement of Brett Robert Hardy, exhibit A.

EXHIBIT #A WITNESS STATEMENT OF BRETT ROBERT HARDY

PN420

MR RAUF: Mr Hardy, I just had a few questions by way of clarification. Paragraph 25, you describe duties undertaken by AWU staff who are typically considered to be in passenger handling roles and you at (b) for instance, talk about transferring passengers between seats on flights and across flights. Can I ask you to clarify what you mean by that?‑‑‑Yes, the customs service staff transfer passengers within the CM system, the Amadeus system, across particular flights. If there's disruptions or passengers turn up late to the airport, depending on their ticketing, they will move them within the actual system. So, I'm referring to the actual flight system in that transfer between seats and flights.

PN421

You referred to CM. What does that stand for?‑‑‑Customer management.

*** BRETT ROBERT HARDY XN MR RAUF

PN422

That's a computer system utilised for ticketing and allocations?‑‑‑Correct. I believe it's an Amadeus system.

PN423

At paragraph 31, you refer to the EGH agreement. You say that that was used as a basis for negotiating the 2009 agreement. How was it used as a basis for the 2009 agreement which was negotiated?‑‑‑The 2004 agreement was with EGH. EGH was set up as an alternative labour hire provider for Qantas to perform the functions of ramp and baggage services. After that agreement had come into force, a number of different other ground handlers had come into the actual ground handling business and a number of those had the opportunity within their agreements to actually include, not just ramp and baggage, but also customer services, those customer service functions being the check-in, sales desk, baggage services et cetera. When the 2009 agreement for the QGS agreement came into place, we used the EGH agreement for the ramp and baggage services side of things and then added some additional wording in there in regards to passenger handling, being the customer service side, to give us the opportunity to compete with those other ground handlers, being both ramp, baggage and also customer services.

PN424

At paragraph 40, you explain that in the transition from the 2009 agreement to the 2013 agreement, your reference to passenger handling was removed from the GC2 classification descriptor. Why was that?‑‑‑When we were finalising the 2013 agreement, naturally we need to have a look at the 2013 agreement compared back to the modern award for airlines. When we did that, when we looked at the passenger handling, which was the customer service functions, we would not have passed the BOOT test. Therefore, it was a requirement that we needed to take GC2 out for the comparison back to the work of customer services being the check-in, ticketing et cetera.

PN425

Thank you. That's the examination in chief, Deputy President.

CROSS-EXAMINATION BY MS DE PLATER [11.56 AM]

PN426

MS DE PLATER: You say in your statement, you've been head of QGS since April 2011, that's correct?‑‑‑Correct.

PN427

At paragraph 9, that you were directly involved on behalf of the respondent, in the negotiations for the 2013 and 2015 agreements?‑‑‑Yes, that's correct.

PN428

But not for the 2009 agreement, that's correct?‑‑‑Correct. I wasn't involved in the 2009.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN429

The 2009 agreement, was the first agreement under which commissionaires were engaged by the respondent. Is that correct?‑‑‑That was the Greenfields agreement.

PN430

The 2009 was in fact, the first year that commissionaires were engaged by the respondent.

PN431

If I can take you to paragraph 16 of your statement. You say there that the primary role of commissionaires is to transport frail, elderly, disabled and less mobile passengers in and around the airport and on to and off the aircraft. That can include by using wheelchairs, Jony Belts, eagle lifts and the like. Is that correct?‑‑‑Correct.

PN432

You've attached to your statement, attachment BH5 which is page number 132?‑‑‑Thank you.

PN433

Yes, down the bottom, might be a bit easier?‑‑‑Yes.

PN434

Those slides are with regards to some training or guidelines in how to deal with customers with specific needs, including how to operate the related machinery safely?‑‑‑Correct.

PN435

Apart from dealing with how to operate the machinery, there was also training in there on how employees are expected to engage with or treat these special needs customers, isn't there?‑‑‑Correct.

PN436

For example, page 133 "these employees are expected to demonstrate effective communication and positive interaction"?‑‑‑Yes, that's because the equipment they use, they have to interact with the individual passenger. Therefore, they need to communicate with them, to tell them what - - -

PN437

At a certain level, that's expected of how that interaction has to be?‑‑‑Yes, there's a certain level of all employees.

PN438

Then, similarly on page 134 "treat each customer as an individual, listen to customers and keep them informed"?‑‑‑Correct.

PN439

That's in respect of delays or other requests that customers might have. Listen to them and provide assistance?‑‑‑Correct.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN440

It's fair to say, that the role of commissionaires, is not just about getting these passengers from A to B and that's it, is it? It's about providing a customer service to these passengers?‑‑‑It depends on the individual and what incapacity they've got. Potentially, a commissionaire could actually transport a passenger through the terminal without any interaction.

PN441

But that doesn't happen in reality, does it?‑‑‑Well, it depends on what you're talking about, a level of interaction. If the level of interaction is hello, how are you, I'm here to assist you and take you to the gate. That's not an in-depth customer service, compared to what the customer service staff would do in regards to delays, transferring passengers across flights and so forth.

PN442

But it's directly interacting with the customers to ensure that they're comfortable and that their needs are met?‑‑‑Yes, it is talking to them.

PN443

Because they don't simply transport passengers in a robotic sense, you know. They're there to assist them with their particular needs, their direct human interaction with them?‑‑‑Yes.

PN444

It would be important to QGS, would it not, that these passengers have a positive experience with commissionaires?‑‑‑Well, not just with commissionaires, all passengers should feel comfortable throughout their journey.

PN445

Certainly, but at least with commissionaires, it would be important to QGS that they have a positive experience in their movement between check-in and the aircraft?‑‑‑Well, they should be treated fairly and equally along with all other customers, depending on who's actually transporting them.

PN446

It would be hard to achieve that without good customer service, wouldn't it?‑‑‑Not necessarily. As I say, I mean, there's not a - depending on the individual, they may be just picking them up, saying hello and dropping them at the gate, so.

PN447

Yes, that's true, but that's an aspect of interacting with a customer that's a positive experience for them?‑‑‑Yes, but there's an expectation on all employees, whether being QGC, Qantas employees or other people employed by the Qantas business, that if they're coming into contact with a customer, that they have an interaction if the customer asks. For example, if I'm the terminal and a customer asks me a question, I'll answer the individuals, same along with other people that come into contact.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN448

But the role of commissionaires is a little bit different to just coming into contact with passengers. These passengers have special needs and it's a very hands-on role at times. Most people employed by QGS, I would put to you don't actually physically engage with these passengers and don't have to talk them through that procedure and make sure that they're comfortable. It's a different type of interaction with a customer?‑‑‑To explain what they're actually about to do to them, depending on the type of equipment that they're using.

PN449

Yes, because it can be quite intimate, where they're touching the passenger and how they're moving them?‑‑‑Depending on the incapability of the individual.

PN450

At paragraph 23 of your statement, you say there that the roles which are typically considered to be passenger handling roles, include customer service officers, customer service assistants and Qantas Club members. What do you mean when you say those roles are typically considered to be passenger handling roles?‑‑‑Passenger handling is regarded as a customer service covered under the ASU. Those particular roles that I've outlined there, are basically within the descriptors of the ASU, talking about the checking-in of passengers, working with them throughout the club and then different levels, depending on the responsibilities that they have within the customer service roles.

PN451

I will come to that ASU agreement, but there's no mention of passenger handling in that agreement. The agreement doesn't define passenger handling as those roles that you've pointed out, the check-in roles and the like?‑‑‑Not that I believe of specifically within the ASU. However, 14 years' experience at airports, passenger handling is customer service which is covered by the ASU.

PN452

Well, I'm just wondering where that comes from? It seems like you have a general understanding of what passenger handling means, but the Commission needs to be able to look at something and say, that's where that terms has come from and that's what is meant by passenger handling. Can you point to anything - written down, or any conversations that you've had where that's been discussed, or is it just your general understanding?‑‑‑The original incumbent prior to my role, was actually also the person that put together the EGH agreement. In discussions with him, the wording of the passenger handling was there so that they could do the customer service functions.

PN453

Where else have you got the understanding of the term passenger handling from?‑‑‑In regards to the ASU, the ASU have sought assurances from QGS that we would not do the functions of customer services. In regards to that, the only term that is in the QGS agreement, where they would be pointing towards that particular document would be the word passenger handling.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN454

I'll come to that as well, but even if it were accepted that commissionaires do perform a passenger handling role, that doesn't necessarily mean that you'd suddenly be employing someone to do those roles that are in the ASU agreement. Then you're not suddenly employing someone to do the check-in roles, you're still employing someone to do a separate role, they just both come under the umbrella of passenger handling?‑‑‑I disagree with that. I'm saying that commissionaire work is GC2 work, which is the transporting of passengers throughout the terminal, and not - - -

PN455

I understand that that's the respondent's position on that.

PN456

THE DEPUTY PRESIDENT: Well, how is it, Mr Hardy, that there is a passenger handling referred to in GC3 in the TWU agreement? Who is under that classification?‑‑‑Sorry? What page is that on?

PN457

You go to attachment - you go to the 2015 agreement; attachment B describes the various GC classifications. GC3 it refers it's the only classification that refers to passenger handling?‑‑‑This agreement that you're referring to, Commissioner, is the QGS agreement. The QGS agreement is the agreement that I just mentioned came from, originally, the EGH agreement. We put that in there so that we could actually do customer service work. We are referring to passenger handling there, being the customer service work that is typically done by the ASU to give us the opportunity to do both customer service and baggage and provide a complete ground handling business if we're available to do. Does that answer your question, sir?

PN458

Well, no. This agreement is with the TWU, isn't it?‑‑‑Correct.

PN459

What's the ASU got to do with it?‑‑‑So, the reason it is with the - okay, it's the TWU. Some of the functions that are in here, are similar functions that are done by ASU predominantly and historically. The opportunity here was, so that we, as QGS under this TWU agreement, could also actually do some of that work, similar to some of the other ground handlers that now have that in their agreement, where predominantly, they only looked after ramp and baggage. It's an extension of our agreement to give us the opportunity to do - - -

PN460

Who, under this agreement, is regarded as being involved with passenger handling?‑‑‑Currently there is no one, because of the side letters with the ASU.

PN461

No one?‑‑‑Which, we've given assurance that we wouldn't do the work.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN462

I might ask your counsel this, but I'm not quite sure what side letters with another union has to do with the interpretation of this agreement. You might take that on notice Mr Rauf. Thank you.

PN463

MS DE PLATER: Just to go back to that point about your understanding of the term passenger handling, it's not used or defined in the ASU agreement, nor was it in the EGH agreement. You can't point to anything solid from which your understanding about the term passenger handling, applying to the kind of job that were done under the ASU agreement, came from?‑‑‑From my discussions with my previous incumbent, and also from the knowledge that I've had from working at airports.

PN464

Just generally. You also say that - at the same paragraph 23, that these passenger handling roles, primarily focus on the direct interaction with and responsibility for customers. Isn't that exactly what commissionaires do?‑‑‑No, the type of roles that I'm describing in there, are where the passenger has an issue with their booking. If they're late to the airport, they'll need to go to the sales desk. The sales desk will then work on, depending on what type of ticketing they've bought, issues in regards to if we've got delays and so forth, transferring them across different flights et cetera.

PN465

Yes, but the primary focus, you say, of a passenger handling role, is a direct interaction with and responsibility for customers?‑‑‑Yes, and resolving customer enquiries and issues.

PN466

Yes?‑‑‑Those issues relating to their particular bookings, not - - -

PN467

Well, that's not what is said there. It's simply that the role is primarily focussed on the direct interaction with and responsibility for customers and resolving customer enquiries and issues. Surely, the role that commissionaires perform, can fit within that definition?‑‑‑Not in relation, when you put it back to passenger handling because passenger handling is not just the commissionaire role. What we're talking about there is that the passenger handling is the customer service and rebooking into flights from a system perspective.

PN468

But the primary role of a commissionaire is direct interaction with customers. They're not sitting in an office behind a computer somewhere; they're dealing with customers one on one. That is their job?‑‑‑To transport them through the terminal.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN469

Isn't it true that commissionaires are the only employees, employed by QGS under the agreement, who deal directly with passengers?‑‑‑There are other people who deal with the customers. A couple of examples are from time to time they will do marshalling work. So where actually directing customers to go to stand-off bays for potentially the QantasLink operation. There is also other instances when the QantasLink aircraft introduced a premium hand luggage, so the passengers would not take their baggage into the hold, but put it at the front of the aircraft. There's an interaction there between the passengers. Then there's also potential interactions in regards to the bag drop that's been introduced. There's tubs which need to be used for soft bags and so forth. We need to - there is no automatic system to bring them from downstairs to upstairs, so the people that return the tubs are directly there with the passengers who are dropping off their bags and so forth and they do interact and help them.

PN470

So, I understand there might be other roles that have as a by-product of the role, interactions with passengers, but in terms of the direct dealing with the passengers and that being the only job that they have to do, it's only commissionaires that are employed under the agreement in that kind of role?‑‑‑Could you say that again, sorry.

PN471

I'm not talking about incidental interactions with passengers that employees may have in the course of their work. I'm talking about the entirety of the job being to interact with a passenger. Apart from commissionaires, there's no one else employed under the QGS agreement whose entire role is customer focussed?‑‑‑It would be dependent on the capability of the individual. In some cases, they may not interact to a large extent, whereas others they need to interact with them, because of the equipment they use in that transportation.

PN472

But on a day to day basis they would be constantly interacting with customers?‑‑‑Depending on the people that are coming through the terminal at a particular point in time.

PN473

We've touched already on the ASU agreement and you've said that the term passenger handling, in the context of QGS' operations, applies to work which is commonly undertaken by workers under that agreement, the ASU agreement. When you say in the context of QGS' operations, what do you mean by that?‑‑‑Sorry, could you just refer me to the paragraph?

PN474

24, sorry?‑‑‑So, I'm referring there to the opportunity that we could have to do the customer service work which is covered by the ASU.

PN475

I've already asked you whether there's any document or anything like that which records the fact that passenger handling in QGS' operations specifically refers to that kind of work under the ASU agreement and you said there's nothing solid that you can point your finger to in that regard?‑‑‑Other than the conversations I've had with my incumbent and I also refer to the side letters where the ASU has said that QGS needs to give an assurance that we won't do that specific work of customer service.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN476

That's the ASU, yes and I will come to that, but anyway, it's still just this general understanding of what passenger handling means from your perspective, rather than anything in particular, where that's recorded anyway?‑‑‑Hmm.

PN477

Then again at 25 paragraph 25, you say that the duties performed by the ASU staff, again who are typically considered to be in the passenger handling roles, include more customer-centric tasks and you listed some examples of that below. But, it's true that the job of the commissionaires is solely interaction with customers, and it may be, whether I - I take your point about there are levels of how much they'll actually speak to a customer, depending on the level of impairment, but they are dealing with customers constantly, that's their job. Is that correct?‑‑‑Yes.

PN478

How could it be said that a commissionaire's role is not a customer-centric task?‑‑‑Because their primary function is actually transport the passenger through the terminal onto their flight, and in reverse, off their flight. Customer service staff have a different level of responsibility.

PN479

That's customer service staff, but when you're describing a role as customer-centric, it doesn't matter that the role that commissionaires do, involves transporting passengers, it all revolves around a passenger. It couldn't be anything more customer-centric, I put it to you?‑‑‑The work that the commissionaires do, is the communication - and yes, a part of it, but in regards to the customer service, their whole function is customer-centric.

PN480

Well, for example, with check-in work, that sort of work involves a customer handing over a passport or a licence or a booking number or whatever, and being handed back a boarding pass and they they're off. Whereas commissionaires are physically and directly deal with passengers who require assistance in a number of ways for the whole journey between check-in and onto the plane and whatever they need to do in the middle?‑‑‑So, the customer service staff doesn't just - in your particular explanation, they also interact with the customer. There's a number of different questions that they need to ask the questions to passenger in relation to dangerous goods on the aircraft, for example, which requires additional training on their perspective.

PN481

But there's a number of questions that commissionaires need to ask of passengers as well, isn't there?‑‑‑It's more explanation of what they're doing rather than asking them do they actually have this part, lithium batteries, et cetera.

PN482

But they have to ask them what kind of assistance they need in circumstances, don't they?‑‑‑Depending on their capability.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN483

Exactly, but the way they find that out is by asking the customer?‑‑‑Yes.

PN484

I'll move onto paragraph 28 of your statement and that's where you refer to this letter that you sent to the ASU on 24 November 2016, and you state in that letter "QGS currently has no" - sorry, that's at page 320, attachment BH13 to your statement?‑‑‑Yes.

PN485

That's the only letter that you signed off on, that you provided. Is that correct?‑‑‑It's the only one that I've provided. That's 33 in a string of.

PN486

What you say in there is that "QGS currently has no plans for the period until 30 September 2020 to become a ground handler for above wing activities"?‑‑‑That's correct. Three months after the agreement finishes.

PN487

That's right, and in your statement, at paragraph 28 you say that the purpose of that statement was to confirm that there were not QGS employees employed in passenger handling roles?‑‑‑And also up to September 2020.

PN488

But there's no reference in that correspondence to passenger handling, is there?‑‑‑Above wing activities is generally referred to customer service roles.

PN489

But again, but that's based on your general understanding of what passenger handling means in the industry. All that you said in the letter is that QGS won't employee activities for above wing activities?‑‑‑Well, it's not just me, it's also the ASU because the ASU have accepted that letter and the fact that we wouldn't do it.

PN490

Well, we don't have any evidence about what the ASU have done and that's not relevant for these proceedings. We've just got to look at what you've actually said in this letter, because reading that, on the face of it, it's not clear from the face of it, that you're referring to passenger handling, just that you're confirming QGS won't employ employees engaged in above wing activities such as checking-in and ticketing?‑‑‑Sorry, I didn't know there was a question there.

PN491

Do you agree with that?‑‑‑The wording of above the wing activities, I say, is the same as doing the customer service work. It's a continuation of two previous letters which also referred to it and the work that is being done.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN492

Why would - if we were to accept that commissionaires are engaged in passenger handling work, if we agreed to that, why would that in any way affect the commitment that you've made to the ASU here not to employ employees in above wing activities?‑‑‑Well, one I don't agree, because I believe they're covered under GC2 and what we're actually referring there to, is the wording of passenger handling, is not the commissionaire work. The wording of passenger handling is the customer service work, that is referred to under the ASU award.

PN493

I understand that's your position, but I'm trying to establish why both the employees employed under the ASU agreement who you say undertake the passenger handling work, and commissioners, can't both be described as passenger handlers. Is there any reason from your perspective why they're mutually exclusive?‑‑‑As I say, I refer to passenger handling as the work covered by the ASU which is check-in, customer services, ticket desk and so forth, which does not cover the commissionaires. So therefore, I say that passenger handling is not one and the same with commissionaires, it's covered under GC2.

PN494

It currently is, but that's not to say they would so the same duties. You wouldn't be employing someone to do the tasks that are occurring under the ASU agreement, but is there any reason why both can't be seen as passenger handing roles with different duties applying?‑‑‑Because it's not passenger handling. Passenger handling is customer services.

PN495

We'll move on to paragraph 33 of your statement. You've already stated for the Commission that you weren't involved in the negotiations for the 2009 agreement. You say at paragraph 33, that the first QGS agreement in 2009, was based largely on the EGH agreement, with the difference being that the term passenger handling, which did not appear in the EGH agreement, was included in the GC2 classification in the 2009 QGS agreement. Is that correct?‑‑‑Yes, that's correct. It wasn't in the EGH.

PN496

You weren't involved in the 2009 negotiations, but you say at paragraph 34 of your statement, that based on your experience and involvement in agreement negotiations and communications with the TWU, that the term passenger handling, in the context of the 2009 agreement, refers to, as you say manual check-in of passenger et cetera. What do you mean by your experience and involvement in the agreement negotiations with the TWU?‑‑‑Actually, at the time when the 2009 QGS agreement was being put together, I was actually on the company representative for the ASU negotiations and in those negotiations, basically they were worried in regards to QGS with those wordings of passenger handling and also in correspondence - sorry, in discussions with my previous incumbent the knowledge that those actually meant customer services, that the ASU were worried that the QGS were going to take their positions. Hence, in those negotiations, as part of the closing part of that, is why they requested the side letter.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN497

But I didn't ask you about your conversations and experience with the ASU, Mr Hardy, I asked you about your experience and involvement in the agreement negotiations with the TWU, which you also mention at paragraph 34. What do you mean by your experience and involvement in the agreement negotiations with the TWU?‑‑‑At that particular point in time, we were looking at putting QGS into a number of different functions and I was in a number of meetings in regards to that as well.

PN498

Meetings with who?‑‑‑With the TWU, Mick Perry, to name someone.

PN499

But you weren't involved in the 2009 agreement negotiations. Haven't you already said that?‑‑‑Yes, I'm not talking about the 2009 negotiations, I'm talking about physically putting people into the business in airports, where I was looking after airports at that particular time and what functions they would perform.

PN500

Generally speaking?‑‑‑Generally.

PN501

But in terms of the 2009 agreement, you didn't have any involvement in the negotiations with the TWU at that stage?‑‑‑Correct.

PN502

That's the agreement where this term passenger handling was introduced?‑‑‑Correct.

PN503

You really can't say what the parties understood that term to mean when it was introduced in 2009, because you weren't part of those negotiations?‑‑‑Only from previous - not previous, but following discussions with the incumbent on what he was saying passenger handling was.

PN504

Nothing directly that you were involved in?‑‑‑No.

PN505

Just this second-hand information from your predecessor?‑‑‑Well, I'm not quite sure if it's second-hand or first-hand if I've had a direct conversation. Sorry, I'm not being rude.

PN506

I just mean the way that you're giving it now, is at least second-hand. You've taken it from someone who's supposedly, potentially engaged in discussions with people, or may himself, just had a general understanding of what that term meant?‑‑‑If that's the correct terminology.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN507

At paragraph 40, you talk about the removal of the term passenger handling from the GC2 classification and the retention of that term in the GC3 classification in the 2013 agreement?‑‑‑Yes.

PN508

You say that it was retained in the GC3 classification to keep the option open for QGS to employ staff in customer service facing roles, if it wished to do so in the future?‑‑‑Correct.

PN509

Do you recall in your involvement in the negotiations for the 2013 agreement, do you recall having conversations about what was actually meant or intended by the term passenger handling with the TWU in those negotiations?‑‑‑It wasn't raised.

PN510

Okay, no problem. I'll move on, Mr Hardy to paragraph 53 of your statement. You say there that the expression of interest documents you've included as attachment BH17 to your statement, page 333, it's right at the back? At paragraph 53 of your statement, you say that those expression of interest documents refer to the primary duties of commissionaires to be transporting passengers. I'll just take you to the first page, page 333. That document sets out the responsibilities of commissionaires as being providing professional, helpful assistance to customers, anticipating the needs of those customers and offering them assistance in a friendly and empathetic manner. Lifting customer's baggage, pushing wheelchairs and facilitating the movement of customers. Would you agree that those descriptors don't actually indicate that the primary duty of commissionaires is transporting passengers. It's just one dot point there in the list of responsibilities?‑‑‑It still forms part of the major point of the document.

PN511

But we're talking about whether or not it's the primary duty?‑‑‑All three are there to the same extent - just because it's listed third.

PN512

Well, I know, but in your statement, Mr Hardy, you said that these documents show that the primary duty of a commissionaire is transporting passengers. I would suggest that it's just one of the duties; it's not the primary duty?‑‑‑Well, in order to satisfy number three, as we've mentioned before they need to have a conversation with the passenger, if he's very incapable and he's requiring an eagle lift to actually be courteous to the passenger and inform them, and be able to have good communication skills, so that the customer knows exactly what's going to happen.

PN513

Exactly, so at least as important as the actual physical movement of passengers, is this focus on the manner of interacting with passengers in a polite, professional, empathetic nature?‑‑‑Which would be expected from all.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN514

I'll move to page 335, there's another expression of interest document and that sets out the responsibilities as being to assist elderly and less mobile passengers, to provide a high level of customer service, operate disabled passenger lists and communicate a diverse range of clients and so on. Again, that doesn't really indicate that the primary duty required of commissionaires is transport, does it?‑‑‑Well, it talks about assisting elderly and less mobile passengers, operating disabled passenger lists and using correct manual handling techniques.

PN515

Yes, so it's part of the duties of commissionaires?‑‑‑There's an expectation that they are able to have communication skills, so they can talk to the passenger who needs to be transferred in very difficult circumstances for the individual.

PN516

That's right, so again, there's an emphasis, importantly, on the level of customer service and assistance and the type of communication that's engaged in by these commissionaires in the course of their duties?‑‑‑Which is expected from all employees who come in contact with customers.

PN517

I won't go through the rest, but the next one on page 336 is very similar, assist customers with specific needs, provide outstanding customer service, meet and exceed customer requirements, time management, et cetera. So, the same point is made there. It's not simply to transport these customers from A to B, it's to provide this interaction in a professional and empathetic manner?‑‑‑To assist them through the difficult transition while they're transporting the passenger.

PN518

Yes, and that's because in reality, isn't it, that the primary duty of commissionaires, it's not simply to transport passengers from A to B, as if robotically, without speaking to them at all. The job is actually to directly interact with these customers in an appropriate manner, to provide them with the assistance that they need and be responsible for their journey between check-in and the aircraft?‑‑‑Depending on the individual.

PN519

THE DEPUTY PRESIDENT: Could I ask you some questions about this, the recruitment. So, is this internal recruitment for commissionaires?‑‑‑We've done a combination of internal and external at points in time.

PN520

I see?‑‑‑The majority of those are all internals.

PN521

They would usually come from persons, as we've seen from the evidence today, who are in baggage handling or ramp work?‑‑‑Yes, we've also had some of the successful applicants come from fleet presentation, which is the cleaning of the aircraft as well.

*** BRETT ROBERT HARDY XXN MS DE PLATER

PN522

They are on the same salary level?‑‑‑That is correct.

PN523

Are you involved in the process of interview?‑‑‑Not directly.

PN524

Do you get feedback as to why would someone do this new job for the same rate of pay?‑‑‑There's a lot of different people that want to do different types of work and take sideways moves. Generally, what we find, a lot of people come into QGS to get an opportunity to work with Qantas and they'll work with us for 12 months, we've got a requirement, and then they may apply for other roles. In that particular time-frame they can apply for other roles within QGS as well to broaden their skill base, so that when they finish their 12 months they've got a better opportunity.

PN525

If they're in the other duties, and are successful, but don't work out, could they go back to their previous role?‑‑‑Yes.

PN526

Does that happen?‑‑‑We may have had one or two, but I can't be 100 per cent.

PN527

Could I take you to the ASU agreement, which is 281 of your materials?‑‑‑Thank you.

PN528

At the foot of page 88, this is under the heading of Level 2 Descriptors, there's typical duties within airports at level 2. The second dot point at SIT - what's that mean?‑‑‑SIT is Sydney International Terminal.

PN529

I see, so they meet and greet customers and assist with wheelchairs, unaccompanied minors and customers with special needs on a dedicated roster?‑‑‑In the international terminal, they have a roster group which do similar work to the commissionaires. It's an ASU function in international terminals and not a TWU function.

PN530

Sounds like the same work to me, isn't it?‑‑‑It is the same. As I say, they perform the same function but there's a jurisdiction between the two, that the ASU will do it at international terminals and the TWU will do it at domestic.

PN531

I'm not quite sure that geography matters, terribly much, unless you're in Darwin to Sydney.

PN532

Thank you. Anything in reply?

*** BRETT ROBERT HARDY XXN MS DE PLATER

RE-EXAMINATION BY MR RAUF [12.37 PM]

PN533

MR RAUF: Yes please, thank you.

PN534

Mr Hardy, I might just pick up with the question raised with you by the Deputy President. You were taken to page 88. Is it the position that some of the functionalities of a commissionaire?‑‑‑Sorry?

PN535

281 rather, 281 being in the ASU agreement, the descriptor, level 2 descriptor in the ASU document. In respect of the international terminal, the ASU can also cover functionalities attached to commissionaire?‑‑‑That is correct, including Perth as well.

PN536

If I can just - going to the Transport Workers Union, am I correct in understanding that the TWU under which, to your understanding, can cover customer service roles, as you've discussed potentially as well?‑‑‑Sorry, can you repeat that please?

PN537

Just turning now to the TWU and the 2015 enterprise agreement under consideration. Are you able to state your understanding as to whether the TWU can cover the customer service roles which you say fall under passenger handling?‑‑‑Yes, sorry, I thought you were referring to the QAL. You're referring to the QGS? Yes, that is correct.

PN538

You were asked a question about whether the agreement - or employees have currently been engaged under the agreement to fulfil the customer service role and I think you've answered no. Why is that?‑‑‑Because the work that's described in the passenger handling, is inferred to the work that is customer service work of check-in, baggage services, Qantas Club and those types of functions.

PN539

But if QGS were to make a decision to engage someone to undertake that work, it could do so among the members of TWU?‑‑‑Yes, it could. But we would need to look at that side letter.

*** BRETT ROBERT HARDY RXN MR RAUF

PN540

The last question is about whether commissionaires have interaction with customers, and that that is a focus of what they do. You said well, the interaction was dependent on the people coming through. What did you mean by that?‑‑‑Well, if you've got an unfortunate, severely incapacitated customer that requires a thing called a full lift, or an eagle lift, there's a lot of manual handling that they're trained up on and they need to explain to the unfortunate customer what they are about to do, so we ensure that we're not invading personal space and so forth and they have an understanding of what is required for that eagle lift, as an example.

PN541

You also asked that there may be the need for commissionaires to ask questions about the type of persistence required and you said well, that depended on the capability. What did you mean by that?‑‑‑It goes back to that - sorry, I'm just trying to get my words. If you've got a passenger, you don't know what their issue is, is it whether it's just because they're elderly or they have an incapacitation. There's a question to say how can I help you, so they get an understanding of what is required.

PN542

If I can just go back for a moment to your evidence about the TWU being able to cover customer service roles as customer services, you've described the duties. Is there an example of that to your knowledge, where this is an agreement with the TWU extending to customer service functions?‑‑‑Other than the QGS award, no.

PN543

You were taken to a number of the adverts at attachment 17 of your statement and one which you weren't specifically referred to was one at page 340. Among other things, the dot points there in the responsibilities refers to customer transport vehicle?‑‑‑Correct.

PN544

Can I ask you to explain what that is?‑‑‑The customer transport vehicle there is a buggy. It's kind of like a golf cart and there is different sizes and so forth that they can use to transport the customers throughout the terminal and also down on the tarmac. We also have small commuter buses as well.

PN545

To your knowledge, these adverts on which you were questioned, these are made accessible to employees internally, are they?‑‑‑That is correct. For each of these applications, we post them up on our external website as a read and sign.

PN546

Just looking at, for example, again, the advert at page 340, it says "restricted to current QGS CG2 employees" et cetera. To your knowledge, in relation to these adverts, specifically, has there been any questions raised about why the rate of pay is at the QGC level 2?‑‑‑No.

PN547

That's the re-examination. Thank you, Deputy President.

PN548

THE DEPUTY PRESIDENT: Thank you Mr Hardy, you may step down. You're released from your oath and excused from further attendance?‑‑‑thank you.

<THE WITNESS WITHDREW [12.45 PM]

PN549

THE DEPUTY PRESIDENT: Does that complete your evidentiary case?

*** BRETT ROBERT HARDY RXN MR RAUF

PN550

MR RAUF: Yes, Deputy President. That completes the evidence on behalf of the respondent.

PN551

THE DEPUTY PRESIDENT: All right, well I'm in your hands.

PN552

MR RAUF: It takes up to submissions. I expect that we'll probably need a little more than 15 minutes, but it's a question of whether we adjourn for lunch now and then come back for submissions, or make a start. It's really a matter for Ms De Plater, as to whether she has a view. From my perspective, I wouldn't have any issues with adjourning earlier and perhaps coming back to make submissions.

PN553

THE DEPUTY PRESIDENT: If we have to come back anyway, probably best if we start afresh, and then you can put your submissions together over the lunch and adjournment.

PN554

MR RAUF: Yes.

PN555

THE DEPUTY PRESIDENT: Are you happy with that?

PN556

MS DE PLATER: I'm happy to start now, but I'm in your hands, your Honour.

PN557

THE DEPUTY PRESIDENT: How long do you propose to be?

PN558

MS DE PLATER: For my part, I would say no more than 15 minutes.

PN559

MR RAUF: I would anticipate about 30 to 40 minutes.

PN560

THE DEPUTY PRESIDENT: We will resume at 2 pm then. Thank you.

LUNCHEON ADJOURNMENT [12.46 PM]

RESUMED [2.00 PM]

PN561

MS DE PLATER: Thank you, your Honour. We rely on our written submissions and submissions in reply. I don't intend to repeat those here today, but just to speak to our main points, briefly.

PN562

With respect to the threshold issue, regarding the notice of claims clause, our position is that the relief sought in these proceedings, does not constitute an extra claim for the purposes of the no extra claim clause at clause 30 of the agreement. The union's view is that the words in the DC3 classification, namely the words for an employee, employed after the date of commencement of this agreement GC3 year 2, rate of pay will apply for passenger handling are clear.

PN563

We do not take issue with those words and we're not seeking to vary those words or the classifications at all, and indeed it's common ground between the parties that no such claim was pursued by the union in the bargaining for the agreement. The issue which is taken by the applicant in these proceedings and the issue which is at the heart of this dispute relates to the way in which the respondent has interpreted those classifications and applied them to commissionaires.

PN564

It's not a situation where we are suggesting that the role of commissionaires has somehow changed or increased such that they're entitled to move up a classification grade; it's a situation where we believe these employees have had the incorrect classification grade applied to them by the employer. Really, it comes down to the interpretation of passenger handling.

PN565

This is where the parties are at odds and where the dispute has arisen and what we're asking the Commission to do is to interpret those words as they appear in the agreement on the evidence which is before it and on the basis of that interpretation, to determine in a manner which is consistent with the disputes settlement procedure at clause 8 of the agreement. Whether the correct classification which should apply to commissionaires is GC2 or as we say, GC3 year 2. For those reasons your Honour, we say that this application and the relief which is sought by the union should not be viewed as an extra claim for the purposes of clause 30 of the agreement.

PN566

Moving on to the merits of the application then, and in particular the issue of the meaning to be attached to the term passenger handling in the agreement. Your Honour would be well aware that there's a well-established line of authority with respect to the approach to be taken to the construction of enterprise agreements. It's first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. If there is a plain meaning, then evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement.

PN567

Only if the language of the agreement is ambiguous or susceptible to more than one meaning, then can evidence of surrounding circumstances be admissible to aid the interpretation of the agreement, including evidence of prior negotiations and notorious facts.

PN568

What doesn't seem to be in dispute, and I can be corrected if I'm wrong about this, is that the clause was clearly intended to mean that any employee who is engaged in passenger handling will be paid at the GC3 year 2 rate of pay, and that's regardless of what other duties are contained in the classifications. The issue is with regards to the interpretation of passenger handling and what that means.

PN569

Our position is that the words passenger handling, are ordinary and well understood words meaning dealing with or management of passengers and that such an interpretation does not reflect a narrow or pedantic approach to construction, but rather, is a reasonably generous construction. The result of those words being given their ordinary meaning is that the work performed by commissionaires and the work performed by, for example, check-in staff, could both be covered by that definition.

PN570

From the evidence before your Honour, we would say establishes that the entire role of the commissionaires involves dealing with and interacting with passengers. It's not an incidental part of the job which it may be for baggage handlers and so on who are expected to be polite to passengers they pass in the course of their work. It is not incidental, it's the entirety of their job.

PN571

It was accepted by Mr Hardy that the role of commissionaires is a customer interaction role. Any suggestion, we say, that the role could be performed without customer interaction just does not align with the reality of the work performed by commissionaires. The entire job of commissionaires is to assist passengers. It is a hands-on customer-centric job.

PN572

Our submission that a review of the surrounding circumstances, including the history of the agreement does not reveal any ambiguity in the term, which would have the effect of overriding that plain meaning of the term. There is some reliance placed on the history of the agreement and an assertion that the terms passenger handling has a well-known meaning within Qantas Airlines and the airline industry by the respondent. To assert that the term passenger handling has a meaning which cannot accommodate the work performed by commissionaires and is confined as applying specifically to the work performed by check-in staff or staff who organise ticketing or who work in the Qantas lounge and so on. The co-called above wing activities.

PN573

We submit that your Honour wouldn't be satisfied on the evidence before you that the meaning of the term passenger handling, has been confined to work performed by employees engaged in above wing activities, is a fact that was, or is known to both parties, nor that the meaning is so notorious, that knowledge of it by both parties should be presumed. The term was first brought into the first QGS agreement in 2009. There is no evidence before your Honour from any person involved in those negotiations, as to any common understanding about what was intended by the inclusion of that term in that agreement.

PN574

There is further, no evidence of any discussion about or common understanding of that term in either the 2013 or 2015 negotiations. Beyond the evidence of Mr Hardy, which was general in nature, there was nothing in particular, which your Honour can rely upon as establishing as fact, that the term is commonly understood in Qantas and the industry, as referring exclusively to above wing activities.

PN575

Certainly, the evidence of the applicant's witnesses, who have all worked in the industry for some time, is that their understanding of the term passenger handling, is dealing with the management of passengers and there is no understanding on the part of those witnesses, that that term applies exclusively to check-in and so forth staff in the above wing activities.

PN576

Some reliance was place on the ASU agreement, as representing the work which is commonly or typically understood to be passenger handling work. However, that term isn't used in the agreement at all, and again, reliance is place on this general understanding of what that term means. In any event, we say it is unclear from our point of view how the ASU agreement would, in any way, be affected, if it's even relevant to a consideration by your Honour, how it would be affected if it were found that commissionaires were engaged in passenger handling, work would still continue under that agreement in those above wing type activities.

PN577

It's simply accepting that the work of commissionaires is properly described as passenger handling, doesn't suddenly mean that they're performing those above wing duties. There's no threat to the employees engaged under the ASU agreement in finding that commissionaires are engaged in passenger handling. It's not clear to us why the two must be mutually exclusive and why they could not both be considered passenger handling roles.

PN578

Finally, the fact that we would say the fact that commissionaires have always been paid at the GC2 rate for the work that they do, is also not evidence of any common understanding that that was agreed between the parties. These surrounding circumstances therefore, we submit, should not be admitted to change the plain meaning of the words of the agreement. Our position is that dispute is capable of being resolved and should properly be resolved by reference to the plain language of the agreement.

PN579

Unless your Honour has any questions, those are our submissions.

PN580

THE DEPUTY PRESIDENT: Well, yes, and I guess it's directed to both of you. The agreement provides for a ground crew 3 and that's where one finds the passenger handling reference and only there. So, where do you - then that classification is further crafted into 3A and 3B. So, where do you say that the employees should fit? Because you say their currently three GC2.

PN581

MS DE PLATER: That's right.

PN582

THE DEPUTY PRESIDENT: But there is actually three or two sub-threes.

PN583

MS DE PLATER: I think that's right. I think the two subgroups are in addition to the GC3 classification, which is on its own as well.

PN584

MR RAUF: Perhaps if I can just provide some clarification on that point, Deputy President. GC3 is a stand-alone level.

PN585

THE DEPUTY PRESIDENT: Yes.

PN586

MR RAUF: GC3A and 3B are separate classification levels which were introduced during the 2013 enterprise agreement, but they don't - so it's on a subdivision of three, but rather separate classification in addition to three.

PN587

THE DEPUTY PRESIDENT: People don't move between the threes? Or they may.

PN588

MR RAUF: Not necessarily, I mean it may be that someone at 3A or 3B, for instance, as in the case of Mr Beach who was engaged - does leading hand duties, he may fill in, in other roles, but if one is engaged as a leading hand, they are paid as such and either at 3A or 3B. So, they don't then step down for the purposes of pay if they are required to fill or help in another level.

PN589

THE DEPUTY PRESIDENT: For the purposes of this exercise, what is being sought is the rate of $851.80 as compared to the pay current rate of $818.56, is that right?

PN590

MS DE PLATER: Yes, your Honour.

PN591

MR RAUF: Sorry, I think that's right, but I just need to check. Yes, that's right, and indeed if one looks at that - at 14A rather, it sets out the different classification levels with reference to the respective of corresponding rates of pay.

PN592

THE DEPUTY PRESIDENT: The agreement itself has different rates for new starters and existing employees as at 11 November 2013, but then the GC3, without the A and B, similarly has two grades of one to two. That's obviously service-based. Is there any implications in this in respect to new starters?

PN593

MR RAUF: Sorry, in respect of - at least in relation to the employees that have given evidence they are already employed.

PN594

THE DEPUTY PRESIDENT: Yes.

PN595

MR RAUF: To that extent, where the sentence provides for employees employed after the date of commencement of the agreement, one would think that that wouldn't have any relevance or application in the present matter.

PN596

THE DEPUTY PRESIDENT: Does new starters mean starters in the position, or starters as an employee of the company?

PN597

MR RAUF: I understand it's the latter but I might just confirm that, Deputy President.

PN598

THE DEPUTY PRESIDENT: Yes.

PN599

MR RAUF: I'm instructed that the understanding is that new starters' commencement is really commencement in employment, rather than movement into another classification rather.

PN600

THE DEPUTY PRESIDENT: I see. Apart from those employees who might be recruited from outside or externally, the others might usually be, or more invariably have much more service than a year, perhaps?

PN601

MR RAUF: It's possible, yes.

PN602

THE DEPUTY PRESIDENT: Yes, all right. Ms De Plater, if you're right, what do you say about any back-payment considerations?

PN603

MS DE PLATER: We acknowledge that that's not an order that your Honour can make, and we're not seeking that your Honour make that order. We're just seeking a determination of what they should be paid under this agreement. The question of back-pay is something that will have to be considered down the track, I imagine, depending on the outcome of these proceedings. I don't have instructions on those, except that that's not something that we're pursuing today.

PN604

THE DEPUTY PRESIDENT: No, I understand that, but there's practical implications from the outcome that you're seeking.

PN605

MS DE PLATER: Right, yes.

PN606

THE DEPUTY PRESIDENT: They might be quite significant.

PN607

MS DE PLATER: Possibly, yes your Honour. I would imagine that if we were successful today, that would be looked at for sure, yes.

PN608

THE DEPUTY PRESIDENT: Well, commissionaires were introduced in 2009, was it?

PN609

MS DE PLATER: That's right, yes. I don't know how many began at that time, but yes, that was the first that that role existed.

PN610

THE DEPUTY PRESIDENT: It may not only have implications for existing employees but for former employees.

PN611

MS DE PLATER: Yes, I accept that, your Honour.

PN612

THE DEPUTY PRESIDENT: All right, thank you. Yes, Mr Rauf.

PN613

MR RAUF: Yes, thank you. Sorry, just on that point as well, Deputy President, Mr Hardy gives the number as currently 35 commissionaires employed at Sydney, Melbourne and Brisbane airports at paragraph 12.

PN614

THE DEPUTY PRESIDENT: Yes, I know that. I'm more thinking about the cross-implications for - - -

PN615

MR RAUF: Thank you. Deputy President, we also rely on our written submissions filed 31 May. In essence, there are two arguments to the respondent's case. We do maintain the argument that the application seeks an outcome which is contrary to clause 30 being the no extra claims clause, and secondly, that even if that hurdle is overcome, on applying the correct principles of construing enterprise agreements, the commissionaires are correctly classified at ground crew level 2.

PN616

To construe the classification structure and the enterprise agreement broadly, in any other way, leads to an inconsistency and the type of literal interpretation which was warned against by Magdwick J in the oft recited Kucks decision. I'll develop those two points. I don't say anything though about the back-pay aspect in light of the applicant no longer pursuing that part of the claim.

PN617

There were three cases that I wished to take you to Deputy President. For convenience, I'll hand them up now. Then I provided these earlier to Ms De Plater. Before I do, just looking firstly at the no extra claims contention. So, if I can start perhaps with the agreement itself and initially clause 5.1, which is the statement of the agreement being a comprehensive agreement.

PN618

But then of course, moving through to clause 30 and relevantly, "The parties bound and employees covered by this agreement will not pursue any claims relating to any matter or employment condition during the life of this agreement". I'd ask Deputy President that at this stage you simply underline any matter, or condition of employment for reasons that I'll come back.

PN619

In its submissions in reply, the applicant seeks to distinguish the Toyota Full Court decision and say well, firstly there's no material change here, but secondly or so there's no attempt to vary any aspect of the agreement, but rather, construe a particular provision. With respect, for reasons I'll explain, that's not a correct understanding of the decision, and indeed, the approach of the test to be applied.

PN620

If I can perhaps explain that, with reference to the decision itself. That's the first decision in the bundle and the Deputy President will no doubt be aware that this is a matter relating to the appellant company seeking to vary terms of the agreement and notifying employees of proposed changes, challenges made to that, and ultimately it was held that the variation - sorry, no extra claims clause to the extent that it sought to limit or prevent the employer from exercising a statutory right to request whether employees approve a variation.

PN621

It was repugnant, but helpfully the Full Bench did go on to consider claims that may fall within the scope of clauses such as this. It did so on quite a detailed analysis of the industrial context and history in the use and development of provisions such as this which have become very common place.

PN622

The relevant clause is set out at paragraph 2 of the decision, clause 4 in that agreement. Deputy President, you'll note that that clause says -

PN623

The parties agree they will not, prior to the end of this agreement make any further claims in relation to wages or any other terms and conditions of employment.

PN624

Now, the provision that Qantas - the QTS agreement is broader in as much as it talks about any matter or conditions of employment. So that's the first thing to note.

PN625

If I can go along to the construction of clause 4, which commences at about paragraph 34. Midway through 35 the Full Court refer to the first instance, the decision where his Honour, in that decision said -

PN626

The ordinary meaning of the word claim, was not limited to a demand for something as of right and extended to a contention or demand for something which the claimant regarded or asserted to be due or fitting. In respect of the use of the word claim in the context of industrial negotiations, the primary judge noted that typically, each of the employer and employees would make claims designed to improve upon or advance their respective entitlements or interests.

PN627

Then of course, at 37, the Full Court referred to and expressed agreement with a passage from the first instance decision, and that is referred to in the applicant's reply submissions. But there are a number of important observations about this particular extract and seeking to rely only on this extract to distil the approach and the test to be applied.

PN628

His Honour at first instance in expressing what is set out or quoted at paragraph 37, was contrasting the argument with reference to the Newland Coal decision which was about AWAs and the ability to offer AWAs to employees covered by an agreement. But he also did so with reference to the specific character of the proposal which was before him, which was accepted as being significant. His Honour noted that this is particularly so when he proposed variations are significant and suggested an attempt, as I consider here is the case to strike a new bargain. That's with reference to the facts which were before him and which are not in dispute as to the character.

PN629

But to say that well, that means the claim must mean something which involves a significant variation et cetera would be, with respect, not correct. And indeed, if I can go to paragraph 56 of that decision, the Full Court here, very clearly rejected the attempt by the appellant Toyota to put a narrow construction on the word claim, in saying that -

PN630

The Industrial Relations history is sufficient to reject the contention by Toyota that the word claim in clause 4 of the agreement must be understood in the limited sense of an assertion of a right or entitlement whether legal or moral.

PN631

Then at 60, after noting that by the time that the Toyota agreement was in place, there was already provision in the relevant legislative framework, preventing parties from taking any industrial action during the nominal period of an agreement, the Full Court said this -

PN632

The makers of the agreement must be taken to have been award of the relevant provisions of the Fair Work Act when they put their names to it. The embargo on industrial action before the arrival of a nominal expiry date of the agreement applied, is much to the employees and their union as it did to Toyota.

PN633

No proposal for changes in wages or other terms and conditions in employment could have been supported by industrial action until the arrival of that date. Importantly, the reference to claims in clause 4 must therefore have been an intended reference to demands, requests, proposals and the like that could not have been supported by industrial action.

PN634

So, it's quite a broad understanding of the word claim. The Full Court finally on that decision, also noted the context of the operation of clauses such as this, where at paragraph 71 it noted the submission which it accepted, that -

PN635

A provision such as the no further claims aspect of clause 4 is to be regarded as an important element of the supporting mechanisms implicit in the scheme of collective bargaining for which the FW Act provides. Such a provision delivers stability and predictability in the matter of terms and conditions of employment generally, regarded as an essential characteristic of a business in a market economy.

PN636

It notes that - it submitted in effect, that Toyota is the employer and the paymaster would have regarded this provision, in itself, as fundamental to the bargain which it reached with its employees and their representatives. We accept those submissions.

PN637

I just briefly, while we are on the no extra claims contention, turn to a decision of the Commission. This is in the context where it is said that, well here, the observations of the Full Court and the nature of the proposal in contention are very different to what is before this Commission, in that there's no attempt to vary any provision of the agreement. Rather, it's seeking to apply the agreement so that it has a different outcome, in effect.

PN638

In the decision of North East Water, for the record citation Australian Municipal, Administrative, Clerical and Services Union v North East Water (2014) FWC 6922, there Commissioner Wilson was concerned with the challenge to changes sought to be made by North East Water to its fleet management policy. The impact of that was to limit private use by some employees of motor vehicles which were owned and maintained by the employer.

PN639

The issue which arose, the context of the challenge was that at paragraph 11, again it happens to be clause 4 -

PN640

4 No Further Claims

PN641

4.1. The parties undertake that for the life of this Agreement there shall be no further claims in relation to salary increases or conditions of employment sought or granted, except for those granted under the terms of this Agreement.

PN642

Again, so if I can make this observation, this no further claims clause is again, more limited than what appears in the QGS enterprise agreement in that it is confined or limited to salary increases or conditions of employment.

PN643

At 39, the Commissioner noted the contention of North East Water, that the case didn't deal with a change or variation to a policy and in contrast, so that's the Toyota decision. It didn't deal with a change or variation to a policy, and in contrast, dealt with an enterprise agreement. Whereas here, the issue was the variation of a policy which was not referred to or otherwise encompassed in the provisions of the enterprise agreement and indeed there would be no need to alter any provision or vary any aspect of the enterprise agreement itself.

PN644

In considering that - - -

PN645

THE DEPUTY PRESIDENT: Well, how is it said that there's a variation to the agreement by what is suggested?

PN646

MR RAUF: It is suggested that there isn't by the applicant and our response to that is, the question isn't whether there's any variation arising, but rather one needs to look at - and I was just coming to this, Wilson C sets out the test at 50, and that is whether what is proposed as a claim or a further claim requires an examination of a circumstance of the proposal, it's effect on employees in the context of the relevant clause.

PN647

When one applies that approach, the question is there a variation arising, there can still be a further claim, even if it doesn't involve a variation to the agreement itself. That's the effect of this particular decision and indeed, as found by Wilson C here, that even though it was a policy in that case.

PN648

THE DEPUTY PRESIDENT: Well, give me an example.

PN649

MR RAUF: Well, the example is this case where the policy was varied to impact on the extent of use by employees of vehicles and the Commissioner construed that to relate to a condition of employment. In effect, even though it was a policy matter which related to use of the vehicle, in its effect, it properly characterises a matter going to condition of employment which in turn was precluded by the no extra claims.

PN650

THE DEPUTY PRESIDENT: Mr Rauf, I can give you hundreds of examples, that this Commission deals with every day, particularly in the interpretive exercise, which results in people being reclassified in circumstances similar to here where no one paid much attention to it when the agreement was being negotiated. On your argument, that is a claim, isn't it?

PN651

MR RAUF: It is a claim, that's right in the context of this agreement.

PN652

THE DEPUTY PRESIDENT: Well, we deal with it.

PN653

MR RAUF: It is a claim in the context of this agreement.

PN654

THE DEPUTY PRESIDENT: If the employer can hide behind a claim or an interpretive exercise which results in a claim and rarely they're little more than that, because you'd hardly go through the exercise if it didn't result in some benefit. If the employer can hide behind that, no one would ever interpret anything here. I can assure you, we do it every day of the week.

PN655

I must say I'm having trouble with this leg of the argument.

PN656

MR RAUF: I hear you, Deputy President and we do say that the claim here, although it doesn't involve an express variation to the agreement itself, it does have an outcome where there is a very different application and operation of the classification structure more broadly, and then specifically as it applies to commissionaires, or the group of commissionaires employed by the respondent.

PN657

At a number of levels, we say that it amounts to a claim. Yes, it has an outcome which impacts on rates of pay from her, conditions of employment, but secondly, it does also have the effect of altering, if you like, the very structure - for reasons I'll explain when it comes to the interpretation of it, the classification structure at attachment B.

PN658

THE DEPUTY PRESIDENT: The structure? There's no structure that has a commissionaire in it.

PN659

MR RAUF: Sorry, but that the context of the classification structure as it has been set out in attachment B.

PN660

THE DEPUTY PRESIDENT: The word isn't mentioned.

PN661

MR RAUF: Sorry, which word is that?

PN662

THE DEPUTY PRESIDENT: Commissionaire.

PN663

MR RAUF: No, it isn't.

PN664

THE DEPUTY PRESIDENT: You don't find that anywhere.

PN665

MR RAUF: That is so. It's not mentioned, but that's precisely why the principles interpretation - - -

PN666

THE DEPUTY PRESIDENT: Passenger handling is.

PN667

MR RAUF: Yes, but that's why the principles of the interpretation will become more important because passenger handling, while mentioned is not defined, but as Deputy President as you point out, commissionaires itself is not actually referred to in the agreement and so, there is a need to look at the broader context of the agreement and the provisions within it, in understanding commissionaires.

PN668

THE DEPUTY PRESIDENT: Well, I'm not sure that I need to go beyond the meaning of the word passenger handling.

PN669

MR RAUF: Yes.

PN670

THE DEPUTY PRESIDENT: And perhaps you should perhaps focus on that.

PN671

MR RAUF: Yes, if it please, I will do that. I just have a couple of quick points on the no extra claims.

PN672

THE DEPUTY PRESIDENT: Yes, yes. I don't want to deflect you from your task Mr Rauf.

PN673

MR RAUF: I just want to finish that off and then I'll address the matters, Deputy President which you've raised.

PN674

Deputy President you asked about well, interpretation, whether reclassification or an example of a claim which does not offend the no extra claims and helpfully Wilson C here does distinguish and refers to a number of decisions where, on applying the appropriate test, the relevant claim did not amount to a change in the condition and that for instance the implement of a drug and alcohol policy or with reference to the no extra claims clause. So, it did distinguish carefully those examples where one could pursue certain types of claims.

PN675

Just applying that approach, so I've gone to the clause 30 which is very broadly expressed. That operates in circumstances where commissionaires have been classified at the level 2 since the advent of the role in 2009. There's no evidence given as to any issue being raised previous to now, and indeed, in response to the regular advertisements seeking expressions of interest in that role and referring to it being at a CG level 2, on the evidence no question raised.

PN676

Indeed, it's a claim which it does have a significant effect on rates of pay, potentially retrospective, and so, not only is it something which, going to the language of clause 30, it's an employment condition, but that clause is very broadly expressed and deliberately so. If I can come then to the construction point and address some of the matters that Deputy President you've raised in respect of that issue.

PN677

The principles are well known. I don't intend to recite those principles. For convenience, we've extracted and sought to refer to some of them at paragraphs 22 through to 25 of the submissions. If I can just note a few things with respect to those principles. Firstly, the need to avoid a narrow or pedantic approach to the exercise of interpretation. That's from the Kucks decision and the final sentence of the relevant paragraph there - "For reasons such as these, expressions have been held in the case of other instruments to have been used to mean particular things, may sense where properly be held to mean something else in the document at hand."

PN678

The Linfox case is referred to emphasising the need to construe enterprise agreement provisions practically so as to give effect to their presumed commercial purposes and not to adopt an excessively narrow and artificial restricted construction. Finally, the importance of not construing provisions in a vacuum divorced from industrial realities. A lot of these principles are picked up and summarised in the Golden Cockrell.

PN679

If I can come to, in addressing the Deputy President the question which you raised, if I can start with the provisions of the agreement itself. Of course, one starts at clause 13, where the reference is made to the classifications and duties and at 13(a) the various levels, at (b) the company has a right to determine the size, composition, duties and other work practices in place at any of its work sites, (d) referring to the functions identified at attachment (b) will change from time to time in meeting those operating requirements, (e) the company will provide training in paid time to ensure that the appropriate industry standards are applied and maintained in the handling of aircraft and associated equipment and when dealing with guests and their property.

PN680

If one turns to attachment B. The way this is set out, is in terms of functional role, and also ancillary or secondary aspects of it, and that's something which Mr Hardy gives evidence about so that at paragraph 10 of his statement for instance, where he gives evidence about the functional aspect of the classification structure as set out in attachment B. So, at 10, of his paragraph, he explains that GC1 is concerned with non-driving duties, GC2 with driving duties for vehicles set out in that relevant structure, and similar types of vehicles, GC3 are driving or operating more specialised vehicles, which I'll come to, and then of course there are the other classification structures.

PN681

When one turns to GC2 on page 32 of the agreement, the second bullet point there specifically sets out the functional aspect of operating particular equipment and vehicles including and therein is the reference to disabled passenger lift, which of course, is one of the important machineries or devices operated by commissionaires. If one then travels through to GC3, there is reference there to particular other equipment, one in respect of which evidence was given, was the push-back by Mr Trinder.

PN682

He gave evidence that, in operating push-back for instance, there was - it's a very different focus in that it's more specialised and it's engaging directly with aircraft and that's what he does. He operates the push-back. When one looks at the various equipment in that list, there is a complexity associated with it, which is over and above the equipment and vehicles noted at GC2.

PN683

True it is that GC3 refers to passenger handling. There is of course, no definition for what that is. In respect of commissionaires - - -

PN684

THE DEPUTY PRESIDENT: Except in your case, no one performs that work.

PN685

MR RAUF: Well, that's the evidence. There is no one under this agreement, for various industrial reasons performs the work referred to as passenger handling, and in my submission, that ought not be problematic, because it was inserted there for certain reasons and to provide a certain flexibility, and as it so happens, because industrial realities on the ground, a person has not been employed at GC3 passenger handling.

PN686

THE DEPUTY PRESIDENT: I'm yet to ask Mr Hardy this, but I did forget, but you might take instruction. So, what does the trainee passenger handling person do in ground crew one? None of them either, is there?

PN687

MR RAUF: I'd need to get instruction on that, your Honour, I can't immediately answer the question.

PN688

THE DEPUTY PRESIDENT: Presumably it's there for a purpose.

PN689

MR RAUF: If, Deputy President, you'll give me one moment, I'll just - - -

PN690

THE DEPUTY PRESIDENT: Yes, I'd like to know the answer.

PN691

MR RAUF: I'm instructed that there is no one at that level. It's intended as an entry level for persons who will ultimately be engaged at GC3 as passenger handling, so that they can get some familiarity and exposure to various aspects that a GC1 might be involved in. It's an introduction to passenger handling at GC3, but the circumstances are that since the advent of - since 2009, when that term found its way into the 2009 agreement there have been no persons employed at that, not because of a desire to avoid it, but because after the 2009 agreement had been made on the evidence of Mr Hardy, industrial arrangements which occurred and for which reason the respondent made a decision not to engage anyone from then and up until the present time, anyone in that passenger handling role.

PN692

THE DEPUTY PRESIDENT: Just remind me, this reference to passenger handling wasn't in the agreement prior to this one?

PN693

MR RAUF: It was.

PN694

THE DEPUTY PRESIDENT: It was?

PN695

MR RAUF: It's been in the predecessor two agreements, 2009 being the first - it was there.

PN696

THE DEPUTY PRESIDENT: Yes, is that the first occasion?

PN697

MR RAUF: Yes.

PN698

THE DEPUTY PRESIDENT: It's just a coincidence, is it, that that was the same point of time that commissionaires were first introduced?

PN699

MR RAUF: Well, that's when QGC was established to provide the labour hire service to Qantas. It did so, intending to, on Mr Hardy's evidence, have flexibility to provide a whole gamut of services including customer service related roles. But as things developed, and as QGC developed its industrial frameworks and arrangements, it ultimately decided not to exercise that flexibility and it hasn't. That's a position that has continued through the 2013 agreement and into the 2015 agreement.

PN700

THE DEPUTY PRESIDENT: You put something into an agreement that you don't actually have any intention to use for over a decade, or almost a decade, indeed at all. While at the same time, you have the introduction of commissionaires.

PN701

MR RAUF: Well, that's not to say that at the time it was introduced there was no intent. On Mr Hardy's evidence, there - - -

PN702

THE DEPUTY PRESIDENT: There's no evidence of that, because I think the evidence was that Mr Hardy wasn't involved in the 2009 agreement.

PN703

MR RAUF: No, he wasn't. He did give general evidence based on his understanding and responsibilities, that the intent was to try and maintain that flexibility, but as things transpired soon after, the agreement coming into force, a decision was made by the new employer, then QGS, not to engage anyone at that, so as not to offend the ASU or cause issues on that front. There hasn't been anything to suggest otherwise.

PN704

I think that's the industrial context of it, but I think more importantly, turning to the agreement itself, the difficulty of picking up, a literal if you like, understanding of passenger handling without regard to the context of attachment B, one of the difficulties is this, that it's GC2 which refers very specifically to one of the main equipment used by commissionaires.

PN705

That's not reflected in GC3, so if the commissionaires are classified at GC3, there is this inherent inconsistency well, one of the main equipment they use is not referenced in GC3, but instead in GC2. It's not a case of stepping down into GC2 because disabled passenger lift is what they operate. It is what they are trained to operate. To say that well, they can still do it, because they're required to do GC2, is stepping down; it's not doing a GC3 function on that literal interpretation of passenger handling.

PN706

That's an inconsistency which arises if one doesn't have regard to two things. The context of this particular structure and the functional aspect of it but also the specific reference to disabled passenger lift and general transport operations set out in GC2. Whereas, of course, GC3 very specifically talks about certain equipment that one doesn't find in GC3 and general transport operations or - it very specifically sets out the types of equipment picked up by that classification, none of which, commissionaires operate, or indeed are trained to operate.

PN707

That's an inconsistency which will arise and it does throw the classification structure out of whack. One needs to reconcile it, but that is a problem of a literal or interpretation of passenger handling without more. This issue of the inconsistency, it hasn't been addressed by the union and it's one which is left to raise problems for how one can properly and sensibly construe its functionally based classification structure which sets out the core functions which are the focus of each particular level.

PN708

THE DEPUTY PRESIDENT: Can I ask you this, Mr Rauf?

PN709

MR RAUF: Yes.

PN710

THE DEPUTY PRESIDENT: In looking at the 2009 agreement, there's trainee passenger handling at GC1 and there's passenger handling at GC2 and GC3. But interestingly, of course, if one goes to the more recent agreement, the reference to it being in GC2 is no longer there.

PN711

MR RAUF: No, that's right. That's right. Of course, there is no evidence as to why it's included across a number of levels in the 2009 agreement, but Mr Hardy was able to explain that in his role, in negotiating and drafting the 2013 enterprise agreement, in understanding the passenger handling role and the duties attached to that, he went back to the award and formed a view that in light of the nature of duties which persons in those roles may be required to undertake, it wouldn't be appropriate to leave it at GC2 because in comparison to similar duties under the relevant award - - -

PN712

THE DEPUTY PRESIDENT: But it wasn't left in GC2, it was removed.

PN713

MR RAUF: That's right, well that's why, because there was a concern that it would not meet the Better Off Overall Test when one had a look at the award.

PN714

THE DEPUTY PRESIDENT: Wouldn't it have made more sense, if you wanted to put people in GC2, you wouldn't take the passenger handling reference out, irrespective of the definition.

PN715

MR RAUF: It was taken out to avoid a situation - - -

PN716

THE DEPUTY PRESIDENT: But remains in three.

PN717

MR RAUF: It remains in three, yes.

PN718

THE DEPUTY PRESIDENT: I see.

PN719

MR RAUF: It hasn't been utilised, but it remains in three. Perhaps I misunderstood Deputy President's question, but it was taken out of two.

PN720

THE DEPUTY PRESIDENT: I don't think you misunderstand the logic.

PN721

MR RAUF: Perhaps, Deputy President, if you can repeat your point, I might have misunderstood the more specific point.

PN722

THE DEPUTY PRESIDENT: The argument here from Qantas, is that it should be GS2. It was in GS2 in 2009.

PN723

MR RAUF: Yes.

PN724

THE DEPUTY PRESIDENT: It is taken out, but retained in GC3 in the 2013 agreement. Now, doesn't that at least imply something, logically?

PN725

MR RAUF: If I can just - - -

PN726

THE DEPUTY PRESIDENT: Just forget about what the words mean. Someone made a deliberate decision to take it out, but keep it in the other one. If you didn't believe it was in any, and you didn't' have anybody, I don't know why you would put it in there anyway, because you can always make a variation to an agreement by consent or have another vote.

PN727

MR RAUF: Yes, can I perhaps address that question in two parts. It was included, even though ultimately not used for better or worse, to allow for the option of engaging someone under that function. But, if I can some to Deputy President, your point about the transition from 2009 to 2013. Logic would imply that there was a reason for it, and the evidence, the only evidence is that Mr Hardy in his role of refining and drafting the classification structure very deliberately took it out for the simple reason that on his assessment of the duties attached to that passenger handling function, it didn't meet the Better Off Overall Test when looking at customer service duties.

PN728

They all fell at a higher rate, and so it was retained in GC3 to correspond to that, but taken out of GC2, because the problem is, that on the understanding of customer service duties, if that was engaged at GC2, it would no longer meet the BOOT test, which was now applicable, as opposed to some no disadvantage or other test. That was the evidence.

PN729

THE DEPUTY PRESIDENT: It was regarded as a customer service test then, was it - a classification then, was it?

PN730

MR RAUF: The evidence of Mr Hardy was, that in understanding and applying the BOOT test with reference to - - -

PN731

THE DEPUTY PRESIDENT: No, that's not my question. You're saying that it was taken out because it might have been seen to be a customer service classification. Is that what you're saying?

PN732

MR RAUF: Well, it was taken out because it was seen as a customer service classification, which under the award was required to be at a higher level, if that answers your question, Deputy President.

PN733

THE DEPUTY PRESIDENT: I think it amplifies my point, actually.

PN734

MR RAUF: That's the evidence of Mr Hardy. Now, there's been, despite the evidence being put on in clear terms, there's been nothing to suggest or contradict that reason or to raise any issue that commissionaires should have also been at GC3 at any stage, be it in 2009, 2013 or 2015. In my submission, that's got to account for something, certainly in preference to arguments of logic in construing the agreement alone. One has to have regard to how this has been applied and how the agreement has operated in the context of predecessor provisions as well.

PN735

Whereas, if one relies only on a literal definition of passenger handling, it does create, or have other implications which go against the functionality focus of the classification structure, and like I said, there's specific reference to an important equipment operated by commissionaires being set out at GC2, not GC3. Whether, in my submission, one wouldn't have the scope to read reference to that particular machinery or similar types of machinery operated by commissionaires at the GC3 level, given that it is very specifically set out the complex types of machinery that are caught under that classification.

PN736

If I can just for one moment, turn to the facts as they have fallen out as well, because we say that that reinforces the functional aspect of a classification structure. In that regard, Deputy President, you'll be aware that there was the statement of agreed facts. These are the matters in respect of which there is no contention or dispute. If I can just briefly refer to that and Deputy President, ask you to note this, and I'll explain why shortly.

PN737

(b) talks about commissionaires being employed by the respondent to transport frail, elderly, disabled, less mobile passengers. (c) commissionaires transport elderly, disabled and less mobile passengers via wheelchair and by operating equipment and vehicles including disabled passenger lifts and small motorised carts, the very type of machinery expressly referred to at GC2.

PN738

Turning to the evidence of some of the witnesses as well, there was Mr Beach who gave evidence first. Of course, bearing in mind that he also undertook duties as a leading hand and sometimes performed duties additional to that of a commissionaire, even when engaged as a commissionaire. But nonetheless, in respect of the commissionaire role, there are a number of important points arising out of his evidence.

PN739

They included that, as a matter of practice, instructions as to what was required, the nature of the assistance and whom was to be assisted, came from, not directly to commissionaires, but through either screens, or calls from customer service staff, informing commissionaires as to what was required to be done, and indicating the type of handling device which had to be used.

PN740

In this respect, I took him to the training and the focus, or examples in that training on the various type of equipment, and he agreed that the important function of the commissionaire role was to transport employees using the appropriate handling device safely. He also gave evidence that there was a level of interaction, that it varied, but for the most part, it was issuing safe instructions on the use of the particular handling advice and then there were matters of courtesy. Relevantly, Mr Beach also had applied initially for the commissionaire role without regard to pay, which somewhat reinforces or supports Mr Hardy's evidence that often people may seek or express interest in these roles to obtain broader exposure across a level.

PN741

Analogously, much in the same way that Mr Trinder, for example, although he operates a push-back, there's no reason he couldn't be trained in respect of one of the other specific machineries noted at GC3. Now, that wouldn't mean that he is entitled to a higher rate of pay, but it certainly does mean that he has broader experience and is able to assist in respect of more than one specific equipment noted at GC3.

PN742

Mr Price also accepted that also accepted that a primary function of commissionaires, was to safely use handling devices to transport employees. The training was focussed on this and that nine out of 10 times, on his evidence, information was provided as to the requirements and the particular device to be used. Now it may be that he got there and circumstance was that there was a need to reassess or use other equipment, but nine times out of 10, this information was provided to him, not by the passenger, but through other channels.

PN743

In this respect, and again, I say that this evidence supports and reinforces the functional aspect of the classification structure inasmuch as turning to GC2. Again, the functional aspect of GC2 is highlighted at bullet points one and two. Two, inasmuch as it refers to particular equipment and vehicles including the disabled passenger lift and other general transport operations. In my submissions, the various equipment used by commissionaires properly fall within the function noted at the second bullet point, not in any of the functions noted at GC3, which relate to other specific equipment.

PN744

One would need to conflate or combine GC2 and GC3 to say well, look, commissionaires properly fall in GC3, because one couldn't, in my submission, for instance, say well they fall within GC3, but then they step back to operate the very machinery and equipment which is critical to the role which they perform. It's not being said that they don't engage in a level of customer interaction or service, but in our submission, that's something which is secondary rather than primary. The primary is transporting passengers using the appropriate equipment safely.

PN745

THE DEPUTY PRESIDENT: But GC3 also requires those who operate the equipment under that section, under that classification to also operate GC2 and GC1.

PN746

MR RAUF: Well, it does, but the function or the primary function of people at GC3, is to operate either one of those equipment specified, consistent with the flexibility provisions. There is nothing stopping, for instance the respondent from saying, well look, we need you to step back and assist with driving a tow loader because there's a shortage in baggage handling. But it would not be correct to say that GC3 as a function, also normally and ordinarily includes all of the things noted at GC1. Rather, it's stepping back to assist, but the primary focus and - - -

PN747

THE DEPUTY PRESIDENT: Where does it say stepping back to assist? It says all of GC1 and GC2.

PN748

MR RAUF: Yes, well in my submission - - -

PN749

THE DEPUTY PRESIDENT: Where does it say stepping back to assist?

PN750

MR RAUF: It doesn't say that here, but neither does it say that one conflates or reads as a combination all of GC2 and GC3.

PN751

THE DEPUTY PRESIDENT: Yes it does, because it says it. "All of GC1 and GC2". It's not conflating it at all. It says that's what you're required to do. What you're directed to do might be a completely different matter. There's no mutual exclusivity here. Perhaps - - -

PN752

MR RAUF: I've just been helpfully taken to the last bullet point in GC3, work done as required. That's the gateway to working down as required, or operating for instance, something at GC2, or for that matter even, GC1.

PN753

THE DEPUTY PRESIDENT: That's what I just said.

PN754

MR RAUF: Yes, but work done as required, that's the gateway, but that's not to say it's the primary function. The primary function remains that the various equipment noted above and driving, for instance, high lift catering vehicles, for which very particular and detailed training is required given the level of responsibility attached to this. It would be somewhat counter-intuitive if the respondent were to expend the time and resources to provide training on the complex equipment noted here, but then not require employees to operate that, and instead, for instance, send them to the baggage room and sort baggage as a matter of construction and sensible application.

PN755

But that's not to say that the provision for flexible operations isn't there, and indeed clause 13 emphasises as much as far as the ability of the respondent to utilise workers flexibly, including working down and meeting operational requirements, if there's a need.

PN756

Coming back to commissionaires, viewed in that light, their primary function is to use transport using one of the handling devices and as an aspect of that, yes they will, and may interact at a certain level, but if they were unable to operate any of those machineries or devices and for instance, the disabled passenger lift, then they could not undertake that role. Conversely, one could see scenarios where for instance, the instructions were all very clear as conveyed, and it's a matter of turning up with a wheelchair and very little interaction with a passenger, rather than perhaps courtesy.

PN757

But that's not critical to the role. The critical aspect of it is safely transporting using the handling device, the device that they are trained to use to transport the aid. That's why the function of it becomes important, and that's how this agreement has been set up. Consistently, there has been no issue raised in respect of this or any of the previous agreements up until now, challenging that status quo, challenging that understanding or approach and application. That's something which, in my submission is a significant factor in support of the respondent's construction.

PN758

In the same way that the respondent couldn't, for instance, turn up and say well look, we've decided that certain people ought to be classified at a lower level and paid as such. So too here, the position has been since 2009, without disputation or question on the evidence, that commissionaires have been classified at CG2, that's been a matter well understood. That, we say, supports and reinforces the interpretation of the respondent as to how the classification structure has applied and then more specifically, how commissionaires have fitted into it, having regard to their function and the functions described at each level.

PN759

I did hand up a third decision. I'll very quickly come to that, if I may, so I don't leave you wondering, Deputy President, why I've handed it up. That was the Silcar decision of the Full Bench, and this was a challenge to Silcar's ability to reorganise personnel and rosters. The challenge was made on the basis that Silcar was required to consult and take certain steps before it could change rosters. That's noted at paragraphs 2, 4 and 5, clauses at paragraph 5.

PN760

But importantly, if I can just go to paragraph 12 here, the Full Bench in analysing the first instance decision noted that they were relevantly identical terms in a predecessor agreement, being the 2004 agreement. Midway through 12, the 2004 agreement was the agreement made to cover the new employees of Silcar who had previously been direct employees of BlueScope. This historical context throws light on the intent of the parties objectively determined et cetera. The effective replication of clause 10(a) and 10(b) and the 2004 and successor agreements suggest that objectively determined the parties intended clause 12(a) and (b) of the 2010 agreement to have the same meaning as clause 10(a) and (b) of the 2004.

PN761

Then importantly, over the page, this is what may be described as a usual state of affairs, that is, that the capacity of BlueScope to move employees between crews. Then 14, the history supports the conclusion of the Senior Deputy President counts against the close textural analysis search by the AMWU which was reliance on a dictionary definition of the word roster, and changing rosters which tends, in this case, towards to being a narrow and pedantic approach of the sort that Magdwick J cautioned against.

PN762

That's what we say is the effect of the interpretation merged by the applicant in the present case. It is a literal dictionary definition of passenger handling, without regard to the context in which it appears and the functional aspect of the classification structure and the express and very clear reference to the important device used by commissionaires at GC2. We say the predecessor agreements and the history of the coverage of these workers including that no issue was raised since 2009 to the present and that it was not a matter agitated in three successive bargaining periods and no evidence has been put on by the applicant to suggest that it was raised as any such issue.

PN763

It supports towards a view that there was a level of clear understanding as to where commissionaires fitted and how the predecessor agreements operated in respect of commissionaires and why there wasn't a need to then pick up important machinery utilised by commissionaires at GC2 and put that in GC3, or to entertain any agitation for commissionaires to be paid a higher rate of pay.

PN764

We say that on the respondent's case, the matter can be resolved having regard to the provisions of the agreement, bearing in mind that there is no definition of the term in contest. It can be resolved having regard to the provisions of the agreement, the structure at attachment B and the approach which is evidence on the provisions reinforced by the history of how commissionaires have been classified to which there is no counter-veiling or contradicting evidence that there was an understanding at any other level.

PN765

Finally, just going to the question, well, is it a mere coincidence that commissionaires came in, in 2009 at the same time as this reference to passenger handling was included? In my submission, on the evidence, it appears that it was. Indeed, one would expect, logically, that if there was any question, concern or dispute or understanding otherwise, I don't think the applicant is a union that shies away from raising such matters of contest. There has been no contest; there has been no grievance; there has been no issue until now, some eight years down the track. That's something which weighs heavily in support of the respondent's interpretation of classification structure where commissionaires fall within that structure.

PN766

They were my submissions, Deputy President, unless there were any other questions which I could assist with.

PN767

THE DEPUTY PRESIDENT: It would be - you say the term passenger handling is susceptible to more than one meaning, or is it ambiguous or unclear?

PN768

MR RAUF: We say when viewed in light of the placement in the classification structure, it's reasonably clear that it's something more complex than merely interacting with customers. It's something which has a greater responsibility, especially when looked at with reference to the other types of equipment noted at classification level 3. But, it's apparent that there is a level of ambiguity. There is no definition and hence, the need to look at the agreement more broadly, including the context in which it appears and the predecessor agreements, which we say support.

PN769

THE DEPUTY PRESIDENT: The authorities make plain, as I'm sure you well know, Mr Rauf.

PN770

MR RAUF: Yes.

PN771

THE DEPUTY PRESIDENT: That you don't take the second step if the words have a plain English meaning to the ordinary bystander.

PN772

MR RAUF: Yes, in the context of the agreement and we say well, there isn't any ambiguity for the reasons I've outlined. Only if Deputy President could form a view that there was an ambiguity, then yes, you could probably have regard to other factors, which we say reinforce the interpretation, if there is an ambiguity.

PN773

THE DEPUTY PRESIDENT: Thank you.

PN774

MR RAUF: Thank you, Deputy President.

PN775

MS DE PLATER: Thank you, your Honour. Only a couple of matter beyond what we've already put in submissions. Just with respect to the no extra claims issue, as broad as the authorities may have interpreted the word claim, there still seems to be a focus in those authorities around it being an attempt to strike a new bargain in some way. This is a dispute arising from the agreement regarding the application of the agreement and the parties have agreed to include a dispute resolution procedure in order to resolve such disputes. That is what these proceedings are.

PN776

The agreement is clear doesn't envisage that there can be no changes whatsoever during the life of an agreement to conditions of work, simply because they may result in an outcome which is more advantageous in some way to one party or another. So much is clear from, for example, the consultation clause in the agreement which refers to major changes.

PN777

On the fact that the commissionaire role has been classified as GC2 by the employer since 2009 and has been advertised as GC2 and commissionaires have been engaged under that classification under each agreement, without a complaint being raised or a dispute being raised. We say that's not relevant in determining by interpretation whether that's what the parties - or what they should be engaged as. It's not evidence of the fact that there was a common understanding between the parties of that clause in the way that the respondent sees it. We've referred in our reply submissions at paragraph 50 to the authority for that proposition.

PN778

The reference to passenger handling was removed from GC2, as your Honour noted in the 2009 agreement and retained in the GC3 classification in the 2013 agreement. It is clear, we say that that fact and the way that it's contained in the GC2 classification, it's clear that it was intended that employees engaged in passenger handling would be classified as GC3 too. For that reason, we say that the duties, the types of duties listed under GC2, which have largely been carried across from the 2009 agreement with respect to the reference to the operation of machinery and the duties under GC3 are not relevant. If it is a passenger handling role, it is classified as GC3.

PN779

We also say it's not relevant who has the first interaction with the customer, where that be a customer service agent or the commissionaire. It doesn't mean that it follows that the role of the commissionaire is not a passenger handling role. The evidence of the commissionaires today, is that they interact with every passenger. That the level of interaction may vary, has no real bearing on whether the role is a passenger handling role, we say.

PN780

The emphasis on the transport aspect of the job, as being the primary role of commissionaires, we say, has not been made out on the evidence. The expressions of interests provided by the respondent show at least an equal emphasis on customer interaction as with transport, and so much was agreed to by Mr Hardy in this evidence.

PN781

We maintain finally, that the ordinary meaning of passenger handling does not result in a narrow or pedantic interpretation, and actually results in a less narrow and pedantic interpretation than that which is propounded by the respondent in saying that passenger handling applies exclusively only to the above wing activities, to the exclusion of commissionaires.

PN782

Unless there's anything further, your Honour.

PN783

THE DEPUTY PRESIDENT: Thank you. I thank you both for your helpful submissions and the efficient conduct of the proceedings. I propose to reserve my decision in the matter and you will be advised in due course. I now adjourn.

ADJOURNED INDEFINITELY [3.20 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CAMRON BEACH, SWORN................................................................................ PN21

EXAMINATION-IN-CHIEF BY MS DE PLATER........................................... PN21

EXHIBIT #1 STATEMENT OF CAMRON BEACH SIGNED 08/05/2017..... PN30

CROSS-EXAMINATION BY MR RAUF........................................................... PN43

THE WITNESS WITHDREW............................................................................ PN213

CHRISTOPHER PRICE, SWORN..................................................................... PN216

EXAMINATION-IN-CHIEF BY MS DE PLATER......................................... PN216

EXHIBIT #2 STATEMENT OF CHRISTOPHER PRICE SIGNED 04/05/2017 PN225

CROSS-EXAMINATION BY MR RAUF......................................................... PN237

THE WITNESS WITHDREW............................................................................ PN330

WAYNE OWEN TRINDER, SWORN............................................................... PN333

EXAMINATION-IN-CHIEF BY MS DE PLATER......................................... PN333

EXHIBIT #3 STATEMENT OF WAYNE TRINDER SIGNED 09/05/2017. PN341

CROSS-EXAMINATION BY MR RAUF......................................................... PN351

THE WITNESS WITHDREW............................................................................ PN400

BRETT ROBERT HARDY, SWORN................................................................ PN408

EXAMINATION-IN-CHIEF BY MR RAUF.................................................... PN408

EXHIBIT #A WITNESS STATEMENT OF BRETT ROBERT HARDY.... PN419

CROSS-EXAMINATION BY MS DE PLATER.............................................. PN425

RE-EXAMINATION BY MR RAUF................................................................. PN532

THE WITNESS WITHDREW............................................................................ PN548

Fair Work Commission Transcripts

C2017/1572, Transcript of Proceedings [2017] FWCTrans 271 (26 June 2017)