Sunstate Airlines (QLD) Pty LimitedvAustralian Licenced Aircraft Engineers Association, The
[2010] FWA 8279
•3 NOVEMBER 2010
[2010] FWA 8279 |
|
EX TEMPORE REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Sunstate Airlines (QLD) Pty Limited
v
Australian Licenced Aircraft Engineers Association, The
(C2010/5112)
COMMISSIONER SIMPSON | BRISBANE, 3 NOVEMBER 2010 |
Industrial action by employees of Sunstate employed as Licenced aircraft maintenance engineers employed at Sunstate Brisbane Base
[1] This is a revised and edited version of a decision delivered in transcript on 20 October 2010.
[2] An application was filed on 6 October 2010 by Sunstate Airlines (Queensland) Pty Ltd (“the Applicant”) for an order under section 418 of the Fair Work Act 2009 (the Act). The matter was set down for hearing at 3.00 pm on 7 October 2010. During the hearing the parties agreed to proceed to participate in a conference. An agreement was reached between the parties that the Australian Licenced Aircraft Engineers Association (ALAEA) (“the Respondent”) would provide certain undertakings to address concerns that the employer had regarding what was claimed was ongoing unprotected industrial action occurring at the workplace.
[3] The action was alleged to be in the form of a significant increase in the number of hours taken to perform maintenance and repairs on aircraft, in other words a go-slow which included refusing to work reasonable overtime when requested; failing to receive and dispatch aircraft on time; failing to report unserviceable aircraft; utilising significantly higher level of personal carer's leave; and refusing to perform the role of leading hand in an acting capacity. While the ALAEA did not make a concession that this was occurring, it agreed to provide undertakings to the employer that it would undertake not to threaten to engage in any industrial action to which the undertaking applied. Those undertakings provided were in broad terms and given on transcript on 7 October 2010.
[4] This application is made in the context of enterprise bargaining negotiations where a protected action ballot was authorised by Fair Work Australia on 17 May 2010. On 17 June 2010 the ALAEA wrote to the employer advising of a number of different forms of protected action which would commence from 23 June 2010 and which continued until 18 August 2010. Following the ALAEA deciding to agree to provide a comprehensive undertaking on transcript on Thursday, 7 October 2010 the applicant requested the application for a section 418 order to be adjourned. I granted the request for adjournment and a report back conference was scheduled. The conference was conducted on Friday, 15 October 2010.
[5] On Tuesday, 19 October 2010 Freehills Lawyers acting for the applicant wrote to Fair Work Australia stating that the employer had evidence that the undertakings were being breached, and requesting that the matter be relisted and set down for hearing as soon as possible. A revised draft order was provided with that correspondence. I listed the matter for hearing on Wednesday 20 October 2010. I have had regard to the evidence of Mr Delahay, both in the form of his witness statement and the attachments 1, and also the affidavit of Ms Marcs and the attachments to that affidavit.2 I have also had regard to the submissions from both parties and other material tendered by the ALAEA during the course of the hearing.
[6] Mr Delahay gave evidence that he was familiar with the undertakings which were provided on transcript in the hearing before Fair Work Australia on 7 October 2010. He gave evidence that since the provision of those undertakings, further instances of unprotected industrial action were occurring between 7 October and 15 October 2010. He gave evidence regarding a standing order that exists that it is not acceptable to leave an aircraft on the ground overnight without advising that has occurred. He also gave evidence there had been a disproportionate increase in the number of phone calls at the end of a shift advising that aircraft will be unserviceable on the ground, meaning that they will not be in service due to defects or maintenance issues.
[7] He gave evidence that this would not normally occur more than in the order of once a month however this had been occurring three days out of every four. This is an obvious and dramatic increase which would cause significant difficulties for the employer. He stated that rostered hours to perform the maintenance work required were sufficient to maintain aircraft however the work was not being performed in the customary manner. He stated that defects being identified on aeroplanes were being reported late in the shift so that there was little or no opportunity to perform repair work to ensure aircraft were serviceable.
[8] Mr Delahay gave evidence that typically if an aircraft is not going to come out of maintenance and it is required for the first flight the next day there is a standing order that a phone call is made to the technical manager. This standing order applies so that the employer can bring all efforts to bear to get the aircraft online in time for the morning flights.
[9] He advised that shift changes had been made during the course of the industrial action or during the negotiation period to remove a proportion of servicing of aircraft away from Brisbane due to difficulties being caused to the operation of the business by industrial action. He advised that 45 to 65 staff hours of check work a day had been moved from Brisbane. Typically such work was in the order of a hundred hours per night before the industrial dispute. Despite the proportion of maintenance work being considerably reduced the average number of phone calls to a technical manager advising an aircraft cannot come out of maintenance has increased from one per month to three out of every four days.
[10] The Applicant also raised concerns regarding visual inspections and the manner in which these were being conducted. These concerns were not in regard to general daily inspections which may take 15 to 20 minutes but more in regard to detailed visual inspections. General visual inspections as described by Mr Delahay involve an inspection for obvious damage to an aircraft or an area or a component.
[11] As I understand the evidence, detailed visual inspections are generally conducted for example at intervals of 6000 flight hours in regard to a particular aircraft. These inspections take much longer to perform and involve for example in the case of seat belts, performing under floor inspections and the engineer taking the seat belt out and doing a detailed visual inspection. Such an inspection may take in the order of an hour and a half as opposed to a regular cabin inspection which may take 15 or 20 minutes.
[12] Between the hearing date of 7 October and the report back on 15 October an issue regarding the replacement of seat belts had arisen. Evidence was given by Mr Delahay that in one instance after what was described as a report of an “open defect”, where specific defects are not identified, 44 seatbelts were replaced in one aircraft. In another instance, 43 seatbelts were identified as having defects. It was the evidence of Mr Delahay that while the seatbelts showed some wear, they would customarily be left until what is known as a ‘C check’, which is a more thorough inspection.
[13] In the case of one of these examples the aircraft was scheduled to go to Cairns and the seat belts were sent with the aircraft. A contractor had to re-do the detailed visual inspection work as the manner in which the defects were reported did not identify the nature of the defect identified. When a defect is reported as an “open defect” where no specific description is reported then the next person who inspects the reported defects must do a visual inspection of each seat belt in the aircraft to find out what the issue is. Reporting such defects as an “open defect”, it was explained, requires greater time and expense to the employer and is not the customary way seatbelt defects are reported.
[14] I cannot accept that this dramatic increase in the number of seatbelts that were reported as requiring attention can be easily explained away. In the instance when the report of defects were checked as required by another entity in Cairns of the 40-plus seatbelts that were raised as having potential defects, only six or seven were required to be replaced. This is an obvious change in the manner in which the reporting of such defects has been occurring and clearly causing considerable expense for the applicant.
[15] The employer argued that replacements in the order of the two recent cases are highly irregular and would customarily occur at the C check point, where an aircraft may be grounded for an extended period after it had reached a certain number of flight hours.
[16] Since 15 October 2010 it was the evidence of Mr Delahay that he had received a phone call at 12.30 pm early on the morning of the day of the hearing that seven aircraft were unserviceable in Brisbane. He stated that to his knowledge the parts to repair the defects that were identified were available in stock and the repairs could have occurred that night in order that those aircraft could have been serviceable.
[17] However this did not happen despite 97 staff hours being rostered on Tuesday 19 October as there was a double-up of staffing on Tuesdays. He gave evidence that in 20 to 25 staff hours, management employees were able to repair the defects and have all the seven identified aircraft serviceable between 2am and 9am that morning. Mr Delahay, who I understand has in his evidence stated he has 34 years experience as a qualified aircraft maintenance engineer said that he has never experienced seven aircraft on the ground before, as had happened on the morning of the hearing of 20 October 2010.
[18] There was also evidence provided in the matter of a YouTube video 3. I was provided with a copy of the transcript of the video, as well as viewing the video during the course of the proceedings. In the YouTube video the national secretary of the ALAEA, Mr Purvinas states:
“At the moment we have low level industrial action taking place at one of the airlines where we have members, that being Sunstate.”
[19] This YouTube video was posted at a time when the ALAEA did not have protected industrial action occurring in accordance with the Actand in accordance with advice that the ALAEA had provided to the employer. This evidence suggests that the ALAEA was aware that unprotected industrial action was occurring at the time.
[20] The ALAEA referred me to the Civil Aviation Regulations and particularly section 51(1). The reference to this provision in the legislation requires that a person -
“engaged in the maintenance of an Australian aircraft -
if they become -
“aware of the existence of a defect in the aircraft, the person shall report the defect to his or her employer.”
[21] This provision in the legislation does not allay my concern that it appears to me there has been a significant variance in the customary manner in which issues are being reported which cannot be explained by the submissions that have been put by the ALAEA or any evidence that was extracted during cross-examination. It is the evidence, as it appears clear to me, that defects are being reported in a different manner, for example, the seatbelt issue being reported as an open defect and the associated expense related to that for the employer, or the reporting of aircraft being unserviceable the next morning towards the end of an evening shift.
[22] The ALAEA has made a submission that it seeks the indulgence of the Tribunal for more time to call additional evidence in regard to some of the evidence that was provided by Mr Delahay at the hearing. Mr Purvinas referred to some evidence that was given by Mr Delahay in relation to a lightning strike and also the evidence that was given regarding the grounding of the seven aircraft that occurred on the morning of the hearing, which was in connection with a defect in the doors. Mr Purvinas also referred to L checks and some evidence given about the way different aircraft are required to be checked in accordance with those provisions. Mr Purvinas also sought more time in order to have an ability to bring evidence in response to some statements made by Mr Delahay about a stop work union meeting.
[23] I have formed the view that this matter has been on foot since 6 October 2010 when the application was made. The ALAEA should have had a reasonable expectation that following its decision to give undertakings on transcript on 7 October 2010 as a means of resolving the application for an order under section 418 that there was a reasonable prospect that the matter would be back before the Tribunal if the employer had concerns that undertakings were not being complied with. Further, the majority of the matters that were in issue between the parties were canvassed in a witness statement provided by Mr Delahay on 7 October 2010 to the ALAEA. Certainly the nature of the sorts of matters that were being alleged by the applicant, if not the specifics, were known to the ALAEA as far back as 7 October 2010.
[24] Mr Purvinas had the opportunity to cross-examine Mr Delahay for an extended period. Mr Purvinas, as I understand it, is himself a qualified licensed aircraft engineer. He had put a range of propositions to Mr Delahay in cross-examination. Despite the ALAEA being on notice for some time about the nature of the application, there has been no attempt made by the ALAEA to call any evidence of its own, instead it relied more on propositions put in cross-examination.
[25] Matters regarding the servicing of aircraft falling generally under the category of a ‘go-slow’ were set out in the original application. Matters regarding the Applicant’s concerns about inspections of seatbelts were raised at the report back on 15 October. Any further evidence with regard to the issue regarding the lightning strike, or even for that matter a stop work union meeting that was raised at the hearing, would not alter my views about what appears to be happening or is happening in the workplace. The events of the night of 19 October and the morning of 20 October are really the only events which the ALAEA has not had some considerable previous warning about before the hearing on 20 October.
[26] The undertakings that were provided by the ALAEA at point 1.7 were in broad terms. They were not limited to specific types of industrial action. In light of the evidence that has been provided to me I decided to deal with the substantive application. Section 418(1)(b) makes reference to the word "probable". I am required to form a view about the probability of whether unprotected industrial action is likely to be taken on the evidence that has been put. From the evidence that I have heard I am prepared to draw this inference. I am satisfied that there appears to be a pattern of ongoing conduct, particularly in light of the events of the evening of the 19 October and the morning of 20 October that industrial action will be taken.
[27] I have before me an application that is prima facie urgent. I do not have a strong argument before me as to why the ALAEA is not in a position to respond to the matters that have been raised at the hearing in my view. The ALAEA, responded by correspondence, to the request from the representative of the applicant for the matter to be relisted on 20 October. That correspondence stated that they are aware at 3.15 pm, on 19 October 2010 that the applicant was requesting the matter be relisted. It also states that the union received the notice of listing at 3.52 pm on 19 October 2010.
[28] The ALAEA has certainly been on notice since 6 October 2010 that the applicant had filed the application. The nature of the allegations of unprotected industrial action taking place are within the range of the sorts of alleged unprotected industrial action that were first brought to the attention of the ALAEA on 6 October 2010 when it was served with the application. Mr Purvinas has participated in the hearing and conference on 7 October, the report back before Fair Work Australia on 15 October and also the hearing on 20 October.
[29] I have had regard to the decision of Williams SDP in Quality Maintenance Services Pty Ltd 4, where his Honour under previous legislation rejected an application for a stay order in response to a section 127 application. I rely on that decision as well as the general principle set out in a decision of Lawler VP in United Collieries v Construction, Forestry, Mining and Energy Union5 to support the proposition that it would not be appropriate in the circumstances for me to delay further dealing with the matters before me.
[30] In its application the employer has alleged that the ALAEA knows of or is encouraging the employees' industrial action. I do not make a firm finding on this, although certainly from the material that was provided in the YouTube video and the fact that this is occurring in the context of enterprise bargaining negotiations, I think it would not be unreasonable to conclude that the ALAEA has some involvement. This is a matter that would appear to me to be one where the workforce has considered recourse to unprotected industrial action as an instrument that may assist in prosecuting matters in dispute between the parties that are unresolved regarding the enterprise bargaining negotiations.
[31] In terms of jurisdiction in relation to this application, I have formed the view that it appears to me that industrial action by one or more employees that is not or would not be protected industrial action is happening or is threatened, impending or probable, or is being organised within the meaning of section 418(1)(a) to (c). I am satisfied that it appears there is industrial action threatened, impending or probable or being organised that falls within the meaning of industrial action as defined in section 19 of the Act. I am satisfied that the action referred to above is not action within the meaning of section 408 of the Act.
[32] On that basis I must make an order that the industrial action stop, not occur or not be organised for a period. In my view the jurisdictional preconditions are met. I have decided to make the order in broad terms as sought by the applicant, as it appears to me that the changing nature of the types of unprotected action that appear to be occurring make it impractical or inappropriate to be specific or precise about the nature of the action. I am entitled to do this in accordance with section 418(3).
[33] In relation to the order I have decided that it should bind the union and I have adopted the language in the draft application that has been filed. There has been some debate about the extent of the ALAEA's involvement. In TWU v TNT Australia Pty Ltd, Riteway Transport 6, the full bench of the Australian Industrial Relations Commission expressed a view in relation to such a matter under section 496 of the previous legislation. In that decision at paragraph 12 said:
“On the ordinary meaning of the words used, it is clear that the section authorises the making of an order against a relevant trade union once the precondition of industrial action by employees has been fulfilled.”
[34] I am not required in my view to make a definitive decision that the ALAEA is organising the action. The fact that I have formed a view in these circumstances that the industrial action appears to be occurring is sufficient to satisfy me that the union should be bound. The order was made to operate from 8pm eastern standard time on 20 October 2010 until 20 November 2010 which is a period of approximately one month. The other issue which I will raise is that in accordance with the order in terms of point 4.2 it says:
“The ALAEA must provide a copy of the notice in clause 4.1 above to David Delahay and place a copy of the notice on the noticeboard and the hangar and tarmac office by 8 am, 21 October 2010” -
[35] It is my hope that in this time negotiations will have an opportunity to get back on track. I strongly encourage the parties to do all in their power to progress negotiations cooperatively.
COMMISSIONER
Appearances:
A Horneman-Wren SC, Senior Counsel for the Sunstate Airlines (QLD) Pty Limited.
S Purvinas on behalf of The Australian Licensed Aircraft Engineers Association.
Hearing details:
2010.
Brisbane:
7 October.
1 Exhibit 1
2 Exhibit 2
3 Attachment to Exhibit 2
4 Williams SDP, Re: Quality Maintenance Services Pty Ltd, [PR949499], Melbourne, 15 July 2004
5 Lawler VP, Re: United Collieries v Construction, Forestry, Mining and Energy Union [PR925399], Sydney, 6 December 2002
6 Appeal by Transport Workers’ Union of New South Wales against decision of Hamberger SDP of 10 April 2006 [PR971471] and order of 7 April 2006 [PR971437] - Re: TNT Australia P/L Riteway Transport P/L t/as Riteway Express, Giudice J , Hamilton DP , Hingley C, 31 July 2006 [PR973479]
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